Karnataka High Court
Muralidhar S/O. Namdev Pardeshi vs Dr Chandrashekhar S/O. Basappa ... on 13 September, 2022
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO. 5861 OF 2011 (POSSN.)
BETWEEN:
MURALIDHAR,
S/O NAMDEV PARDESHI,
AGE: 50 YEARS, OCC: BUSINESS,
R/O: VISHNU STORES,
STATION ROAD,
HUBBALLI - 580 020.
...APPELLANT
(BY SRIYUTHS VISHWANATH BICHAGATTI, M.R.MULLA,
D.M. MANJUNATH AND A. BAGEWADI, ADVOCATES)
AND:
DR. CHANDRASHEKHAR,
S/O BASAPPA HIPARAGI,
AGE: 72 YEARS, OCC: DOCTOR,
R/O: RADHA KRISHNA GALLI,
HUBBALLI - 580 020.
...RESPONDENT
(BY MISS RUBEEN SHIVAPUR, ADVOCATE FOR
SRI. GURUDEV I. GACHCHINAMATH, ADVOCATES)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST
THE JUDGMENT AND DECREE DATED 30.08.2011 PASSED IN
R.A.NO.89/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE, HUBBALLI, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 05.07.2010 PASSED IN
O.S.NO.205/2008 ON THE FILE OF I ADDL. CIVIL JUDGE AT
HUBBALLI, DECREEING THE SUIT FILED FOR VACANT
POSSESSION.
2
RSA No. 5861 of 2011
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for consideration of I.A. for extension of stay, with consent of learned counsel for parties, it is taken up for final disposal.
2. Sri. Vishwanath Bichagatti, learned counsel for appellant submitted that this appeal was filed challenging judgment and decree dated 30.08.2011 passed by Principal Senior Civil Judge, Hubli in R.A.no.89/2010 and judgment and decree dated 05.07.2010 passed by I Additional Civil Judge, Hubli in O.S.no.205/2008.
3. It was submitted that appeal was admitted on 17.07.2014 to consider following substantial question of law:
"Whether the I Additional Civil Judge at Hubli is justified in entertaining the suit for ejectment of appellant when the monthly rent was Rs.1,200/-, more particularly, in the light of the Full Bench decision of this Court reported in 3 RSA No. 5861 of 2011 ILR 2011 KAR 229 and thus the judgment has become perverse and illegal?"
4. It was submitted that appellant herein was defendant in O.S.no.205/2008 filed by respondent herein seeking for decree for eviction of defendant from suit property and to direct him to vacate and put plaintiff in possession of suit property and also for decree for recovery of arrears of rent of Rs.36,000/- and for future mesne profits, costs etc.
5. In plaint, it was stated that commercial premises comprised in CTS no.2654 of Ward no.1 measuring 50.12 sq.mtrs. situated at Station Road, Hubballi was suit property. Plaintiff claimed that he had acquired suit premises under award passed in ABN Case no.1/1989 passed by Civil Judge (Sr.Dn.), Hubballi. It was stated that defendant was in occupation of suit property as monthly tenant. Tenancy commenced from first day of each month and ended on last day and rent stipulated was Rs.1,000/- per month. It was further stated that 4 RSA No. 5861 of 2011 defendant had not paid rent from date, plaintiff acquired ownership over suit property inspite of repeated demand and as defendant was a chronic defaulter, he was liable to be evicted. It was further stated that plaintiff was a doctor, aged 70 years and senior citizen and required suit premises for his son to open independent clinic. Therefore he got issued notice dated 15.01.2008 terminating tenancy and calling upon to defendant to quit and deliver vacant possession of premises and to pay arrears of rent.
6. Though notice was served on defendant on 24.12.2007, he failed to comply with demand. On said cause of action suit was filed.
7. On service of summons, defendant appeared and filed written statement denying entire plaint averments. It was specifically asserted that defendant was a tenant of suit property since many yeas under previous landlord who had accumulated huge arrears of municipal taxes. In pursuance of oral agreement between them, defendant was permitted pay municipal taxes to be 5 RSA No. 5861 of 2011 adjusted towards future rent. It was contended that agreed rent was Rs.28/- per month and not Rs.1,000/- as claimed by plaintiff. It was further stated that plaintiff was a doctor by profession who owned properties in and around Hubballi and was not in need of suit property. It was also specifically contended that neither plaintiff nor previous owner had informed him about change of title or had demanded rent as alleged. It was specifically asserted that defendant was tenant and suit property belonged to Sri. Kashinath @ Kashappa Malleshappa Betageri. Acquisition of title by plaintiff under arbitration award was denied. Attornment of tenancy in favour of plaintiff was also denied.
8. Based on pleadings, trial Court framed following issues:
(1) Whether plaintiff proves jural relationship between himself and defendant?
(2) Does he prove that defendant has not paid rent at the rate of 6 RSA No. 5861 of 2011 Rs.1,000/- p.m. for 3 years prior to filing of this suit?
(3) Does he prove the termination of tenancy of defendant in accordance with law?
(4) Whether the plaintiff is entitled for
possession, arrears of rent and
mesne profits from defendant?
(5) What order or decree?
9. Thereafter, plaintiff examined himself as PW1 and got marked Exhibits P1 to P4. In rebuttal, defendant examined himself as DW1 and another witness as DW2 and got marked Exhibits D1 to D20.
10. On consideration, trial Court answered issue no.1 in affirmative and issues no.2 to 4 partly in affirmative and issue no.5 by decreeing suit directing defendant to handover actual and vacant possession of suit property. Defendant was also directed to pay Rs.1,008/- towards arrears of 7 RSA No. 5861 of 2011 rent with interest at 6% per annum. Trial Court also directed separate enquiry for determination of mesne profits.
11. Aggrieved thereby, defendant filed R.A.no.89/2010 on several grounds. It was contended that judgment and decree was contrary to facts of case and established principles of law.
That, trial Court failed to frame proper issues and reasons assigned were improper. Oral and documentary evidence was overlooked.
12. It was also contended that termination of tenancy was illegal and there was no adequate proof of defendant being arrears of rent. It was contended that trial Court failed to consider questions of law raised by defendant.
13. Based on contentions urged, first appellate Court framed following points for its consideration:-
8RSA No. 5861 of 2011
(1) Whether the finding of the trial Court that there exists jural relationship of landlord and tenant between the parties is correct or requires to be interfered by this Court?
(2) What order?
14. On answering point no.1 in negative, it dismissed appeal. Aggrieved by concurrent findings, defendant is in appeal.
15. Learned counsel for appellant submitted that full bench of this Court in Abdul Wazid v/s A.S.Onkarappa reported in (2011) 4 KLJ 414 had held that suit for ejectment with or without rent or mesne profits were required to be filed before Court of small causes unless an exception was made out as per Article 4(c) in schedule to Karnataka Small Causes Courts Act. It was submitted that as per plaint averments, monthly rent claimed by plaintiff was Rs.1,000/-. 9 RSA No. 5861 of 2011 Therefore, annual rent would be Rs.12,000/- which would be valuation for purposes of jurisdiction. Since it was less than Rs.25,000/-, suit was required to be filed before Court of Small Causes. He further submitted that question of jurisdiction would be a substantial question of law and could be raised at any stage.
16. He also referred to decision of Hon'ble Supreme Court in case of Saravan Kumar v/s Madan Lal Aggarwal reported in (2003) 4 SCC 147 where under similar circumstances i.e. Sections 14 and 50 of Delhi Rent Control Act, suit filed before Civil Court was held to be without jurisdiction and decree passed was held to be nullity. Hence learned counsel submitted that substantial question of law framed was required to be answered in favour of appellant and appeal deserves to be allowed.
10RSA No. 5861 of 2011
17. On other hand, Miss Rubeen Shivapur, Advocate appearing for Sri. G.I.Gachchinamath, learned counsel for respondent would submit that objection regarding jurisdiction was not raised by defendant before Civil Court. After having willingly participated in proceedings and having obtained decree on merits, defendant cannot be permitted to urge ground of jurisdiction in second appeal without having made out any case of sufferance prejudice or injustice caused. In support of her submissions, she relied upon decisions in the case of Mantoo Sarkar V/s Oriental Insurance Company Limited and others reported in (2009) 2 SCC 244 and in the case of Sneh Lata Goel V/s Pushpalata and others reported in (2019) 3 SCC 594.
18. Heard learned counsel. Perused impugned judgment and decree and records.
11RSA No. 5861 of 2011
19. From above submission, it is not in dispute that suit property originally belonged to one Kashinath @ Kashappa Malleshappa Betageri. It is also not in dispute that defendant was tenant of suit premises from time of his father. While plaintiff claims that suit property fell to his share under an award passed in arbitration case and that defendant who was tenant had not paid rents to him from date of his acquisition of title despite demand and had failed to vacate suit premises after notice of termination. Defendant contends that he was tenant under Kashinath @ Kashappa Malleshappa Betageri and not under plaintiff. Even monthly rent was Rs.28/- and not Rs.1,000/- as claimed. There was clear denial of being in arrears of rent.
20. While passing impugned judgment and decree, trial Court referred to pleadings in plaint that plaintiff had become owner of suit property 12 RSA No. 5861 of 2011 under arbitration award and defendant had admitted to be a tenant. Therefore, it concluded that there existed jural relationship of landlord and tenant. It also referred to pleading that by issuing notice dated 19.12.2007, plaintiff had determined tenancy and despite receipt of notice, defendant failed to vacate suit premises. It observed that notice was served on defendant on 24.12.2007 was established by Ex.P3. It also referred to pleadings and deposition of defendant admitting service of notice.
21. On consideration, it held that since area of suit premises was more than 14.00 sq.mtrs., provisions of Karnataka Rent Act would not be applicable and tenancy would be governed by provisions of Transfer of Property Act. Therefore, tenancy could be validly terminated by recourse to Section 106 of Transfer of Property Act. Issuance of notice of termination and its service on 13 RSA No. 5861 of 2011 defendant was inferred as defendant himself produced Ex.D2-reply notice dated 10.01.2008 issued in response to Ex.P2-statutory notice.
22. Based on said observations and clear admission of parties regarding tenancy being monthly tenancy it held that there was valid termination and proceeded to decree suit.
23. First appellate Court proceeded to examine appeal based on main ground of challenge namely, existence of jural relationship of landlord and tenant between parties. It held that Ex.P.4 award dated 27.11.1982 passed in Arbitration Case no.1/1989, plaintiff was allotted to suit property towards his share in award. Award itself stated that plaintiff was entitled to recover possession from defendant defendant-tenant. It also referred to admission by defendant that he was tenant on monthly rent of Rs.28/- from previous owner. Referring to definition of tenant under Section 3(e) 14 RSA No. 5861 of 2011 of Rent Act, it held that relationship of landlord and tenant between plaintiff and defendant was established. It further held that plaintiff failed to establish that monthly rent was Rs.1,000/-. Referring to evidence led by defendant, namely, Exs.D6 to D11, money orders sent towards rent, it upheld determination of rent by trial Court.
24. Likewise, it concluded that there was no evidence led by defendant to establish that he had paid municipal taxes in respect of suit property on oral agreement with landlord to give set off in future rent and concluded that trial Court had rightly awarded Rs.1,008/- towards arrears of rent. On said conclusion it dismissed appeal.
25. In Mantoo Sarkar's case (supra), Hon'ble Supreme Court was pleased to hold that objections regarding jurisdiction are required to be taken at earliest opportunity and there would be no interference with decree passed on participation 15 RSA No. 5861 of 2011 of parties unless case of sufferance of prejudice or injustice was established. Indeed error of jurisdiction under consideration therein was of pecuniary jurisdiction. Likewise Hon'ble Supreme Court in Sneh Lata Goel's case (supra) was considering error of jurisdiction under Section 21 of CPC.
26. Error of jurisdiction in instant case is not either territorial or pecuniary, but of subject matter. However, findings of full Bench in Abdul Wajid's case (supra) are as follows:-
"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 to Sarojamma's case, on Clause (b) of Article 4 of Schedule to KSCC Act does not lay down the correct law.16 RSA No. 5861 of 2011
99. There is one other aspect which requires to be clarified. In couple of decisions it has been observed that though the general principle is that the jurisdiction of the Court shall be determined by the averment in the plaint. Article 4 of KSCC Act makes a departure from this general principle and the jurisdiction of the Court of small Causes to try the suit for ejectment is made dependent on the contentions raised in the written statement and at the will of the defendant and in the written statement if the defendant were to deny the relationship of landlord and tenant, denies the title or take any other plea which gives rise to issue other than the one mentioned in clause
(c) of Article 4, the Small Causes Court has to return the plaint for presentation before the Civil Court for adjudication. No doubt, as per clause (c) of Article 4 the only substantial issue to be considered is whether the lease has been determined by efflux of time or has been determined by a notice, or the permission to occupy has been withdrawn. If the right of a plaintiff and the relief claimed by him in a court of small Causes depend upon the proof or disproof of title to immovable property or other title in the light of the contentions raised by the defendant in his written statement, certainly 17 RSA No. 5861 of 2011 the court acting under Sec.16 of KSCC Act has to order return of plaint for presentation to proper Court. However, mere denial of jural relationship of landlord and tenant by the defendant in his written statement though the lease is evidenced by document, by itself cannot be a ground to hold that the Court of Small Causes has no jurisdiction. In such event, as an incidental question the Court has to find out whether the property had been let under lease or permitted to be occupied by a written instrument or orally as stated in Clause
(a) and for that purpose the plaintiff has to be afforded opportunity to place evidence.
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.18 RSA No. 5861 of 2011
2) In the context of jurisdiction of Small Causes Court, a suit for recovery of possession of immovable 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 ejectment, recovery of 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 property, 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.
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 19 RSA No. 5861 of 2011 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.
5) The suits for ejectment with or without prayer for rent, mesne profits or damages, pending before the Civil Courts, either upon re-
presentation of plaints pursuant to decision in SAROJAMMA'S CASE or presented afresh after SAROJAMMA'S CASE, the value of the subject matter of which is within the pecuniary limits of the Courts of Small Causes, shall be transferred to the Court of small Causes, which on receipt of such records shall proceed from the stage at which they were pending before Civil Court and dispose them of in accordance with law.
In the light of the above and since we have not considered the petitions referred to the Full Bench on merits, and as we have only interpreted the law, the Registry is directed to place all the Civil Revision petitions before the Bench having roaster for disposal on merits in the light of the law declared hereinabove."
27. In order to examine whether trial Court was in error in entertaining suit, factors to be 20 RSA No. 5861 of 2011 considered as per Full Bench are contentions urged by defendant in written statement. As observed above defendant denied title of plaintiff. He denied relationship of landlord and tenant. He also denied being arrears of rent.
28. Further, plinth area of suit premises as stated in plaint is 50.12 sq.mtrs., which is more than 14.00 sq.mtrs. Therefore provisions of Karnataka Rent Act, 1999, would not be applicable.
29. Prayer sought in suit was for ejectment and for recovery of arrears of rent and mesne profits. As per claim of plaintiff, annual rent was Rs.12,000/- and arrears of rent was 36,000/-. Therefore, value of subject matter of suit was Rs.48,000/-, which was more than Rs.25,000/-. Besides one of specific grounds urged in first appeal was:
"4. The Court below ought to have held that the allege change of 21 RSA No. 5861 of 2011 ownership in respect of the suit property under the alleged Arbitration Award is not informed by the previous landlord or by the plaintiff, and as such, the defendant has not accepted the plaintiff as a landlord."
30. Applying ratio in Abdul Wajid's case (supra), firstly value of subject matter of suit was in excess of Rs.25,000/-; secondly, plinth area of suit premises was more than 14.00 sq.mtrs. Therefore, trial Court would be justified in holding that tenancy would be governed by provisions of Transfer of Property Act and suit would be maintainable before Civil Court. Hence, substantial question of law framed has to be answered against appellants.
31. In the result, I pass following:
ORDER i. Appeal is dismissed with costs.22 RSA No. 5861 of 2011
ii. However defendant-appellant is permitted to occupy suit premises for a period of three months from today and to handover vacant possession to plaintiff thereafter.
SD/-
JUDGE CLK/Vmb