Karnataka High Court
L.M. Sridhar Murthy vs George Vinod Kumar Dead By Lrs on 9 July, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF JULY 2014
BEFORE
THE HON'BLE Dr. JUSTICE JAWAD RAHIM
REGULAR SECOND APPEAL NO.114 OF 2012
BETWEEN:
L.M.SRIDHAR MURTHY
S/O M.MAHADEVAPPA
AGED ABOUT 40 YEARS
R/O NO.3675
BASAVAMANDIRA ROAD
VEERANAGERE
LASHJKAR MOHALLA, MYSORE - 570 001.
... APPELLANT
(BY SRI.MAHANTESH S HOSMATH, ADV.,)
AND:
GEORGE VINOD KUMAR
DEAD BY LRS
1.(a) G.SUDARSHAN KUMAR
S/O LATE GEORGE VINOD KUMAR
AGED ABOUT 53 YEARS
1. (b) SMT.NALINI LEELAVATHI
D/O LATE GEORGE VINOD KUMAR
AGED ABOUT 52 YEARS
1. (c) KUM.G.SUJATHA
D/O LATE GEORGE VINOD KUMAR
AGED ABOUT 56 YEARS
1. (d) KUM.G.MARY FLORENCE
D/O LATE GEORGE VINOD KUMAR
AGED ABOUT 46 YEARS
ALL ARE R/O NO.3713/1 L-19
BASAPPA MATTADA BEEDI VEERANAGERE
2
LASHKAR MOHALLA
MYSORE - 570 001.
...RESPONDENTS
(BY SRI.D.S.HOSMATH ADV. FOR R1 (A, B & D)
R1(C) -SERVED)
*****
THIS RSA IS FILED UNDER SEC.100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 17.12.2011
PASSED IN R.A.NO.1018/2010 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-V, MYSORE,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 18.08.2010 PASSED IN
O.S.NO.1120/2007 ON THE FILE OF THE V ADDL. FIRST
CIVIL JUDGE, MSYORE.
THIS R.S.A COMING ON FOR FURTHER ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The unsuccessful plaintiff is in appeal against the judgment in R.A.No.1018/2010 impugned in this appeal, by which the learned First appellate Judge has set aside the judgment and decree in O.S.No.1120/2007 directing eviction of the respondent.
2. Appeal has come up for admission after prior notice to the respondents-defendants, who is duly represented by Mr.D.S.Homath, learned counsel. The appeal is admitted to consider the following substantial questions of law:
(i) As in the suit filed by the appellant an issue had arisen for consideration about existence 3 of jural relationship between the landlord and tenant between the parties, was not the Civil Court, Court of competent jurisdiction and not Court of Small Causes?
(ii) Is the judgment of the appellate Court sustainable holding that the suit filed by the plaintiff was not maintainable in the Court of Small Causes, which undoubtedly had no jurisdiction to decide the rights of the parties?
3. By consent, appeal is taken up for final hearing dispensing the filing of the paper book.
4. From what the learned counsel for the appellant and respondent had adverted to and on perusal of the records made available, it could be seen that Sri.L.M.Sridhar Moorthy filed a suit in O.S.No.1120/2007 against the respondent-George Vinod Kumar seeking his eviction from the residential premises on the premise that he (plaintiff) purchased the immovable property described in the schedule to the plaint from its former owner M.Kailasha Babu for valuation consideration as evidenced from the deed of sale dated 06.08.2007. After purchase, he got all the co-related records transferred to his name and is thus, the absolute owner. He described the defendant as a 4 tenant of the premises in question and having been inducted by the predecessor in line viz., M Kailasha Babu on a monthly rent of Rs.450/- p.m.
5. He alleged after purchase of the property this predecessor in title, had intimated the defendant about the transfer of title and asked him to pay the rent to him..
6. The defendant agreed to pay the rent and also to vacate the premises, but sought time. Time was granted frequently, despite, which the defendant did not keep up the promise.
7. Contending that he is suffering with great hardship for want of accommodation, he claims he approached the defendant who neither paid rents nor co-operated with him. His conduct was incorrigible compelling him to issue a statutory notice to vacate the premise in question for his own use and occupation on 12.09.2007. The defendant replied denying the jural relationship of landlord and tenant and also set up interest in the property on the basis of an agreement of sale purported to have been executed in the year 1966. The reply is dated 20.09.2007. 5
8. On receipt of the reply, the plainiff approached his vendor who denied there was any contract between the parties or any agreement, consequent to which, the plaintiff filed a suit seeking eviction. In the suit, defendant entered contest raising the same defence as indicated in the reply notice necessitating the trial Court to frame the following issues.
(i) Whether the plaintiff proves that, the tenancy of the defendant is validly terminated as per law?
(ii) Whether the defendant proves that, he has perfected the title over the schedule properties by way of adverse possession?
(iii) Whether the plaintiff is entitled for mesne profits?
(iv) What order or decree?
9. Based on the material propositions in the plaint and written statement, learned Trial Judge has framed the following issues for consideration and in the enquiry that ensued, the plaintiff tendered evidence as PW1 and examined 2 witnesses viz., M.Kailasa Babu his vendor and Chandrashekhar-witness. The defendant tendered evidence as DW1 and supported his testimony through evidence of 6 one Sudarshan Kumar. Plaintiff relied on 12 documents, while the defendant relied on 15 documents.
10. The learned Trial Judge analyzing the evidence opined, plaintiff's evidence outweighs the defence and decreed the suit. In the meanwhile, the defendant had also filed a suit in O.S.No.982/2007 seeking injunctive order against the plaintiff to restrain him from evicting him. That suit was also clubbed with this suit in question and by common judgment plaintiff's suit was decreed and defendant's suit was dismissed. Assailing both the judgments, the defendant was in appeal in R.A.Nos.108/2010 & 109/2010. In the appeal, the main ground challenged was the jurisdiction of the trial Court to entertain the suit for eviction. The defendant contended that since the rate of rent was more than Rs.3,000/-, the suit had to be filed only in the Court of Small Causes as it was a suit for ejectment simplicitor . As the suit was filed in the Court of Civil Judge (Jr. Dn.), which enjoys the jurisdiction of the Small Causes Court, with pecuniary limit of Rs.3,000/-, it asserts that the suit should have filed in the Court of Civil Judge (Sr. Dn.) in a small cause suit as the subject matter was more than Rs.3,000/-. 7
11. The learned Judge accepted these contentions and has allowed the appeal setting aside the judgment of the trial Court granting liberty to the plaintiff to file a case for ejectment and damages in accordance with law. The judgment in O.S.No.987/2007 dismissing suit has also been set aside and an order of injunction has been issued against the plaintiff. Against both these judgments, this appeal is filed.
12. Mr.Mahantesh S Hosmath, learned counsel for the appellant supports the judgment of the trial Court and relies on certain factual aspects. He submits that the plaintiff after purchasing the property had called upon the respondent to pay the rents, which he declined, consequently, issued a statutory notice to evict him, which also is not complied. As the defendant had failed to pay the amount towards rent and set up a plea that there is no relationship of the landlord and tenant perforce suit for possession was filed. Several other contentions are urged against the impugned judgment of the appellate Court, which I shall advert to in subsequent para.
13. In negation to this ground, Mr.D.S.Hosmath, learned counsel for the respondent would submit that the 8 plaintiff claims he purchased the property from the predecessor, owner of the property. He had specifically pleaded that the property was leased to the defendant by the former owner. The plaintiff had filed a suit simplicitor for ejectment when there being no defence from the defendant. It is only after filing of the plaint, the defendant entered contest denying jural relationship and therefore, the suit should have first been filed in the Court of Small Causes for ejectment. If in such proceedings, defendant had raised any dispute then issue would have arisen for consideration and only in such circumstances, the suit should have been withdrawn from the Small Causes Court and presented to the Civil Court. He submits till filing of the plaint there is no material to show that defendant had denied jural relationship. The suit was suit for ejectment and jurisdiction of it was only with the Court of Small Causes. Since, the rate of rent was not more than Rs.3,000/-, the suit should have been filed before the Court of Small Causes. On this ground he submits filing of the suit in a Court of Civil Judge (Jr. Dn.) seeking for an order of eviction against the defendant was without jurisdiction and rightly the appellate Court has set aside the same. 9
14. The jurisdiction of the Court of Small Causes is spelled out in chapter III & Section 8 envisages:
8. Cognizance of suits by Courts of Small Causes-
(1) A Court of 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.
(2) Subject to the exceptions 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 five hundred rupees shall be cognizable by a Court of Small Causes.
The pecuniary limit of Rs.25,000/- was enhanced to Rs.1 Lakh and Rs.25,000/-
respectively by virtue of the amendment to the said provision.
15. Thus, it is evident that though sub-Section (2) specifies that suits of all civil nature, of which value does not exceed Rs.25,000/- shall be cognizable Court of Small Causes. The restrictions specified in the schedule are to be kept in mind. The schedule specifies clearly, following suits 10 are excepted from the cognizance of the Court of Small Causes.
(1) A suit concerning any act done or purporting to be done by or by order of the Central Government or the State Government;
(2) a suit concerning an act purporting to be done by any person in pursuance of the judgment or order of a Court or of a Judicial Officer acting in the execution of his office; (3) a suit concerning an act or order purporting to be done or made by any other officer of the Government in his official capacity, or by a Court of Wards, or by an Officer of a Court of Wards in the execution of his office;
(4) a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit for ejectment where,--
(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 11 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 the law for the time being in force in respect of such lease, or the permission to occupy has been withdrawn;
(5) a suit for the partition of immovable properly;
(6) a suit by a mortgagee of immovable property for the foreclosure of the mortgage or for the sale of the property, or by a mortgagor of immovable property for the redemption of the mortgage;
(7) a suit for the assessment, enhancement, abatement, or apportionment of the rent of immovable property;
(8) a suit concerning the liability of land to be assessed to land revenue;
(9) a suit to restrain waste;12
(10) a suit for the determination or enforcement of any other right to or interest in immovable property;
(11) a suit for the possession of a hereditary office or of an interest in such office including a suit to establish an exclusive periodically recurring right to discharge the functions of an office;
(12) a suit to enforce payment of the allowance or fees respectively called "malikana"and "huq"
or of cesses or other dues when the cesses or dues are payable to a person by reason of his interest in immovable property or in a hereditary office or in a shrine or other religious institution, but not including a suit to enforce such payment when the right is based on a contract in writing;
(13) a suit to recover from a person to whom compensation has been paid under the Land Acquisition Act, 1894 (Central Act 1 of 1894), the whole or any part of the compensation; (14) a suit for the specific performance or recission of a contract;
(15) a suit for the rectification or cancellation of an instrument;
(16) a suit to obtain an injunction;
13(17) a suit to enforce a trust including a suit to make good out of the general estate of a deceased trustee, the loss occasioned by a breach of trust, and a suit by a co-trustee to enforce against the estate of a deceased trustee a claim for contribution;
(18) a suit for a declaratory decree not being a suit instituted under rule 63 or rule 103 of Order XXI of the Code;
(19) a suit instituted under rule 63 or rule 103 of Order XXI of the Code;
(20) a suit to set aside an attachment of any property by a Court or a revenue authority, or a sale, mortgage, lease or other transfer of such property by a Court or a revenue authority or by a guardian;
(21) a suit for property which the plaintiff has conveyed while insane;
(22) a suit to alter or set aside a decision, decree or order of a Court or of a person acting in a judicial capacity;
(23) a suit to contest an award;
(24) a suit under section 360 or section 361 of the Indian Succession Act, 1925, (Central Act 39 of 1925), to compel a refund by a person to 14 whom an executor or administrator has paid a legacy or distributed assets;
(25) a suit for a legacy or for the whole or a share of a residue bequeathed by a testator, or for the whole or a share of the property of an intestate;
(26) a suit,--
(a) for a dissolution of partnership or for the winding up of a business of a partnership after its dissolution;
(b) for an account of partnership
transaction, or
(c) for a balance of partnership
account unless the balance has
been struck by the parties or other
agents;
(27) a suit for an account of property and for its due administration under decree;
(28) any other suit for an account, including a suit by a mortgagor after the mortgage has been satisfied, to recover surplus collections received by the mortgagee but not including a suit for mesne profits;
(29) a suit for a general average loss or for salvage;
15(30) a suit for compensation in respect of collision between ships:
(31) a suit on a policy of insurance or for the recovery of any premium paid under any such policy;
(32) a suit for compensation,--
(a) for loss occasioned by the death of a person, caused by actionable wrong;
(b) for wrongful arrest, restraint or confinement:
(c) for malicious prosecution;
(d) for libel;
(e) for slander;
(f) for adultery or seduction;
(g) for breach of contract of betrothal or promise of marriage;
(h) for inducing a person to break a contract made with plaintiff;
(i) for obstruction of an easement or diversion of a water-course;
(j) for an act, which is or, save for the provisions of Chapter IV of the Indian Penal Code, would be an offence punishable under Chapter XVII of the said Code;16
(k) for illegal, improper or excessive distress, attachment or search or for trespass committed in or damage caused by the illegal or improper execution of any distress, search or legal process;
(l) for improper arrest under Order XXXVIII of the First Schedule to the Code or in respect of the issue of an injunction wrongfully obtained under order XXXIX of the First Schedule to the Code; or
(m) for injury to the person in any case not specified in the foregoing sub-clauses of this clause;
(33) a suit by a Mohammedan for exigible (mujjal) or deferred (muwajjal) dower;
(34) a suit for restitution of conjugal rights, for the custody of a minor or for divorce;
(35) a suit relating to maintenance, but not one based on a contract in writing;
(36) a suit for contribution by a sharer in joint property in respect of a payment made by him of money due from a co-sharer, or by a manager of a joint property or a member of an undivided family in respect of the payment 17 made by him on account of the property or family;
(37) a suit by one of several joint mortgagors of immovable property or contribution in respect of money paid by him for the redemption of the mortgaged property;
(38) a suit against Government to recover money paid under protest in satisfaction of a claim made by a revenue authority on account of an arrear of land revenue or of a demand recoverable as an arrear of land revenue;
(39) a suit to recover property obtained by an act which is or, save for the provisions of Chapter IV of the Indian Penal Code, would be an offence punishable under Chapter XVII of the said Code; and (40) a suit the cognizance whereof by a Court of Small Causes is barred by any law for the time being in force.
16. Except as indicated above, the suits of which the Court could take cognizance are spelled out below. It is evident that to maintain a suit in the Court of Small Causes for possession the suit must be suit for ejectment simplicitor. A suit for possession of immovable property or 18 for recovery of interest in the property is therefore, out of the cognizance of the Court of Small Causes.
17. In the instant case, the plaintiff had not filed a suit for ejectment but possession. The reason for filing the suit before the Civil Court is spelled out in para 7 of the plaint. There is narration of fact that preceding filing of the suit, the plaintiff had issued a notice to the defendant on 12.09.2007 and in response to the notice, the defendant has replied rising specific defence of lack of jural relationship of landlord and tenant. He has also set up a specific claim of having an agreement for sale in his favour executed in the year 1966. He thus, claims protection of possession under the provision of Section 53A of the Transfer of Property Act, 1881. The ground taken by the defendant undoubtedly gave rise to framing of 3 relevant issues before the Trial Court. The issues undoubtedly arose for consideration were:
(i) Whether the plaintiff proves jural relationship of landlord and tenant between him and the defendant?
(ii) Whether the defendant proves that he is in possession of the property by virtue of 19 an agreement of sale in his favour executed in the year 1966 and as to whether he is protected under Section 53A of the Transfer of Property Act, 1881?
18. These issues required adjudication only by the Civil Court of Competent jurisdiction and Court of Court of Small Causes certainly suffers from lack of jurisdiction. In the circumstances, the suit had to be filed in Court of Civil Judge (Jr. Dn.).
19. As regards second contention urged by Mr.D.S.Hosmath, learned counsel for respondent as up to Rs.3,000/- the Civil Judge (Jr. Dn.) can entertain suit of small causes suit, as such, the suit was not maintainable in that Court. This issue will not rise for consideration because I have affirmatively held that the Small Causes Court had no jurisdiction to decide the issue. If we were to hold that the Small Causes Court was the court of competent jurisdiction then the pecuniary limit needs to be examined and not otherwise. In the circumstances, the reasons assigned by the learned appellate Judge to non-suit the plaintiff on question of jurisdiction are not only irrational, erroneous but, capricious. The learned Appellate Judge has 20 failed to examine the jurisdictional issue with reference to Section 8 and Schedule of the Small Causes Courts Act, 1964 keeping in mind the defence urged by the defendant. It need not be re-stated but needs emphasis that only because the defendant had denied the jural relationship of the landlord and tenant, the plaintiff was compelled to file a suit for eviction and for possession raising an issue to decide the vinculum juris of landlord and tenant. This could only have been done by the Court of competent jurisdiction i.e., Civil Judge (Jr. Dn.) and hence, the judgment of the trial Court is just and proper, unjustifiably interfered by the appellate Court needs to be restored. Hence, the appeal succeeds in its entirety. The judgment of the Appellate Court is set aside. The judgment of the Trial Court is restored. The tenant shall vacate and hand over the vacant possession of the premises to the landlord within an outer limit of six months from today subject to the defendant- tenant filing an affidavit that he would vacate the premises voluntarily and deliver the vacant possession to the landlord without compelling him to resort to take coercive steps and shall not create any third party interest.
Sd/-
JUDGE