Karnataka High Court
Navaneesh Prasad vs J Manjunath on 27 May, 2019
Author: Krishna S.Dixit
Bench: Krishna S. Dixit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY 2019
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S. DIXIT
WRIT PETITION NO.34412/2018 (GM-CPC)
BETWEEN
NAVANEESH PRASAD,
S/O LATE M HANUMANTHAIAH,
AGED ABOUT 56 YEARS,
RESIDING AT NO.4,
CHIKKANNA COTTAGES,
LOOP LANE OFF RACE COURSE ROAD,
BENGALURU-560009.
SINCE DEAD BY HIS LEGAL RERPESENTATIVES:
1. DR. LALITHA B.R.
W/O LATE NAVANEESH PRASAD,
AGED ABOUT 57 YEARS,
2. MS. PRATUSHA BHUVANA PRASAD,
D/O LATE NAVANEESH PRASAD,
AGED ABOUT 25 YEARS,
REPRESENTED BY HER MOTHER
AND DULY CONSTITUTED GPA HOLDER:
DR. LALITHA B.R,
W/O LATE NAVANEESH PRASAD,
AGED ABOUT 57 YEARS,
BOTH ARE RESIDING AT NO.4,
CHIKKANNA COTTAGES,
LOOP LANE OFF RACE COURSE ROAD,
BENGALURU-560 009.
... PETITIONERS
(BY SRI. GANESH BHAT Y H, ADVOCATE)
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AND:
1. J. MANJUNATH,
S/O SRI H. JAYARAM,
AGED ABOUT 53 YEARS,
M/S. THE KINGDOM
NO.45, SESHADRI ROAD,
GANDHINAGAR,
BENGALURU-560 009.
AND RESIDING AT FLAT NO.B-3219,
GOKULAM COMPLEX,
DODDAKALLASANDRA,
KANAKAPURA ROAD,
BENGALURU-560 062.
2. SATYAPRAKASH K.V,
S/O LATE K.V MUDALAIAH,
AGED ABOUT 49 YEARS,
M/S THE KINGDOM
NO.45, SESHADRI ROAD,
GANDHINAGAR,
BENGALURU-560 009.
AND RESIDING AT NO.118/6,
16TH CROSS, 1ST BLOCK,
RAJAJINAGAR,
BENGALURU-560 010.
3. M.SHASHIDHAR,
S/O LATE D.MARANNA,
AGED ABOUT 53 YEARS,
M/S THE KINGDOM
NO.45, SESHADRI ROAD,
GANDHINAGAR,
BENGALURU-560 009.
AND RESIDING AT NO.7,
2ND FLOOR, WEST OF CHORD ROAD,
SERVICE ROAD,
MAHALAKSHMIPURAM II STAGE,
ABOVE UNION BANK OF INDIA,
RAJAJINAGAR BRANCH,
BENGALURU-560 086.
... RESPONDENTS
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THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF CONSTITUTION OF INDIA PRAYING TO CALL
FOR ENTIRE RECORDS IN O.S.NO.8150/2015 ON THE
FILE OF THE COURT OF XVII ADDITIONAL CITY CIVIL
AND SESSION JUDGE, INCHARGE OF IX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND
ETC.,
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
In the suit for a decree for ejectment of the defendant from the schedule property, the application filed by the respondent - defendants under Section 8 of the Arbitration and Conciliation Act, 1996 (hereafter 'Act) has been allowed and the dispute in the suit is referred for arbitration. The petitioner - plaintiff has put the same in challenge by invoking writ jurisdiction of this Court. After service of notice, the respondents have entered appearance and opposed the writ petition.
2. Learned counsel for the petitioner - plaintiff vehemently contends that although in the registered "DEED OF LEASE" there is an arbitration clause, still the subject matter of ejectment suit is not legally -4- arbitrable in view of decision of the Apex Court in the case of Himangni Enterprises Vs. Kamaljeet Singh Ahluwalia, AIR 2017 SC 5137. Per contra, the learned counsel for the respondent-defendants submits that the argument of the petitioner's side cannot be countenanced since the scope of arbitration clause is very wide and that there is no legal impediment for the arbitration of the lis in question.
3. I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have perused the petition papers and adverted to the decision cited at the Bar.
4. Admittedly, Paragraph No. 7.3 of the DEED OF LEASE in question contains an arbitration clause in a very comprehensive text which is as under:
"7.3. The Lessor and the Lessee shall refer to arbitration by a sole arbitrator all disputes and differences between them arising out of the grant of the Lease of the schedule property by the Lessor, the use, possession and enjoyment of the schedule property by the Lessee, the termination of the Lease for any reason and consequential delivery of possession of the schedule property by the Lessee to the Lessor, the rights and obligations of the parties under -5- this deed and any other matter pertaining to the lease of the schedule property including the interpretation of the terms of this deed; the place of arbitration shall be Bangalore City and the language of arbitration shall be English; the provision of the Arbitration and Conciliation Act, 1996, shall apply to such arbitration. The award of the arbitrator shall be final and binding on the parties."
The text and context of this paragraph leaves no manner of doubt as to the lis in the suit falling within its scope, as rightly observed by the Court below in its impugned order.
5. The contention of the learned counsel for the petitioner - plaintiff that the subject matter of eviction/ejectment is not legally arbitrable appears to be too farfetched when the realm of litigations all over the civilized jurisdictions is moving towards ALTERNATIVE DISPUTE RESOLUTION. The counsel is not justified in banking upon the Apex Court decision supra inasmuch as the same involved the statutory protection of the tenant under the Rent Laws, which becomes obvious by the perusal of Paragraph No.26 which is texted as under:
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"26. The Delhi Rent Act, which deals with the cases relating to rent and eviction of the premises, is a special Act. Though it contains a provision (Section3) by virtue of it, the provisions of the Act do not apply to certain premises but that does not mean that the Arbitration Act, ipso facto, would be applicable to such premises conferring jurisdiction on the arbitrator to decide the eviction/rent disputes. In such a situation, the rights of the parties and the demised premises would be governed by the Transfer of Property Act and civil suit would be triable by the Civil Court and not by the arbitrator. In other words, though by virtue of Section 3 of the Act, the provisions of the Act are not applicable to certain premises but no sooner the exemption is withdrawn or ceased to have its application to a particular premises, the Act becomes applicable to such premises. In this view of the matter , it cannot be contended that the provisions of the Arbitration Act would, therefore, apply to such premises."
6. Lord Hallsbury more than a century ago, in the celebrated case of Quinn v Leathem (1901) A.C. 495, 506:has observed as under:
"Now before discussing the case of Allen v. Flood, (1898) A.C. 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the -7- whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
Thus, a case is an authority for the proposition that directly and substantively laid down therein and not for all that logically follows therefrom. Admittedly, in the instant case there is no statutory protection to or recognition of tenancy of the kind comprised in the DEED OF LEASE. This makes all the difference to the case at hands.
7. In the above circumstances, no other ground having been urged, this writ petition is dismissed as being devoid of merits.
Costs made easy.
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JUDGE cbc/HB