Bangalore District Court
Mahindher Selvaraj vs M. Shaik Moula on 15 December, 2020
IN THE COURT OF THE XX ADDITIONAL SMALL CAUSES
JUDGE AND XVIII ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU (SCCH-22)
PRESENT : SMT. Shakunthala.S.,
B.A.., LL.B.
XX Addl. Small Causes Judge
and A.C.M.M., Bengaluru.
DATED : This the 15th day of December, 2020.
S.C.No.470/2019
PLAINTIFF - Mahindher Selvaraj,
Aged about 42 years,
S/o A. Selvaraj,
No.101, M.M.Nanjappa
Manor Apartment, #7,
Nanjappa Road, Shanthinagar,
Bangalore-560 027.
(Rep. By Sri.Satish V. Naik, Advocate)
- Versus -
DEFENDANT 1. M. Shaik Moula,
Aged about 62 years,
S/o, Shaik Ibrahim,
no.46/1, Present No.28,
Poorna Venkata Rao Road,
Jalli Mohallah,
Bengaluru-560 053.
(Rep. By Sri.Riyaz Ahmed Shahed, Advocate)
Common Order
Common orders on IA's under Section 151 C.P.C filed by the defendant to dismiss the suit as not maintainable, and under order 14 SCCH-22 2 SC No.470/2019 rule 1 and 14 rule 5 R/w 151 CPC to frame issue and additional issue with respect to maintainability of the suit on the ground of pecuniary jurisdiction as this court having no pecuniary jurisdiction to try this suit and treat the same as preliminary issue.
2. In support of the applications sworn to an affidavit that written statement filed by him and after conclusion of pleadings it is required to frame issues for the purpose of adjudication of controversy involved between the parties. However issue not at all framed till date and on the other hand plaintiff herein has led his evidence by way of affidavit and also cross examined the PW.1 in part. This being the position, we have learnt that no issues were farmed at all till date and plaintiff herein has led his evidence on merit. This is contravening the provision. Therefore it is necessary to frame the issues as well as additional issues by treating as preliminary issue in respect of the suit at the present nature not maintainable. If the applications are not allowed he will be put to irreparable loss, injury and also it will leads to abuse of process of law and if it is allowed no hardship or loss would arise, hence prayed to allow the applications.
3. The said applications have been resisted by the plaintiff by filing written version that the applications are not maintainable either in law or on facts, filed only with a malafide intention to protract the proceedings and is an abuse of process of the court. He has taken innumerable adjournments for cross examining PW.1 and now has come up with these applications. PW.1 appeared and underwent covid test in view of SOP, this court adjourned the matter on the ground that the defendant had changed his counsel. He having no other reason for SCCH-22 3 SC No.470/2019 seeking adjournment has now come up with these present applications, without proceeding is filing applications after application for framing issues and additional issues and to dismiss the suit as this court has no pecuniary jurisdiction to try the suit and he does not even want a trail as regards the competency of this court to entertain the suit on the ground of want of pecuniary jurisdiction.
4. The provision of section 151 of CPC relating to inherent Jurisdiction of the court, cannot be invoked, and the applications are not maintainable.
5. The question of dismissing the suit above for want of pecuniary jurisdiction in the absence of any plea is not permissible. Further a court of Small Causes is a court of limited Jurisdiction created for the purpose of ensuring quick and expedient disposal of matters, which are of a simple nature. The absence of an appeal provision Act, intended so as to give a finality to the proceedings. In view of the same maintainability of the above suit can be adjudicated along with the main suit as evidence has commenced and the witness partly cross examined.
6. The suit being one for ejectment and the valuation of the suit being within the pecuniary jurisdiction of the court, this court has pecuniary jurisdiction to entertain the suit and pecuniary jurisdiction not based upon the averments in the written statement but in the plaint averments, hence the applications are devoid of merits and prayed for dismissal of the applications with exploratory cost.
7. Heard the arguments. The learned counsel for plaintiff filed memo with citation reported in 2000(1) KCCR 301 between Narayan Shanbhog Vs Venkataraman Upadhay.
SCCH-22 4 SC No.470/20198. The points that arise for my consideration are as follows:
1. Is there any sufficient grounds to dismiss the suit as not maintainable as this court having no pecuniary Jurisdiction to try this suit?
2. Is it is just and necessary to frame issue and additional issue?
3. What order ?
9. My answer to the above points are as under:
POINT No.1 to 2 :Partly in the Affirmative in
respect of framing points based
on the pleadings and Partly in
the Negative that suit is
maintainable and based on the
nature of the suit, rent, this court
having pecuniary jurisdiction.
POINT No.3 :As per final order for the
following.
:: REASONS ::
POINT No.1 to 2 :-
10. For the sake of convenience and to avoid repetition of facts all the points are taken together for common discussion.
It is the case of plaintiff that defendant is a tenant under him in the schedule premises I.e, shop premises 'Madeena Metal Mart on a monthly rent of Rs. 5,000/- p.m and the same commencing from first of every month. The schedule premises originally belonged to plaintiffs father A Selvaraj, having purchased the said property, under a sale deed dated 25.05.1987 for a valuable consideration. He gifted the said property in favour of the plaintiff his son under a gift deed dated 07.03.2011.
SCCH-22 5 SC No.470/201911. Defendant being tenant of schedule premises under the plaintiff's father and prior to that, under the then owners of the property of which the schedule premises forms part. After he became the owner of the property, defendant attorned his tenancy in his favour by paying monthly rent. He has been carrying on business as an authorized dealer for exide batteries and presently carrying on business at Koramangala in a rented premises, under the name and style of 'Battery Tec'.
12. Since he required the schedule premises for his own use and occupation to carry on his business he caused notice on 24.01.2019 intimating that the tenancy in respect of the schedule premises would stand terminated on expiry of 15 days and called upon him to quit and deliver vacant possession of the schedule premises and also informed if he continued in occupation he would be liable to pay future mesne profits at Rs.30,000/- p.m.
13. The notice dated 24.01.2019 was duly served, however he has not complied the notice and failed to quit and deliver vacant possession of the schedule premises.
14. He replied to the notice by disputing the boundaries, relationship but failed to deliver vacant possession of the schedule premises.
15. On the contra it is his defence that he is the tenant under the father of plaintiff for past several years, earlier one Abdul Rahim was the tenant on a rent of Rs.400/- p.m . Which was enhanced to Rs. 1,000/-p.m and he took possession on a monthly rent of Rs.1,000/- and was enhanced to Rs.2,000/- p.m and later on with an assurance from A Selvaraj father of plaintiff that he will not demand for eviction and SCCH-22 6 SC No.470/2019 received a sum of Rs.3,90,000/- stating that he will not demand any rent. With the said assurance he paid Rs.3,90,000/- to his father. The said Selvaraj with out knowledge and information transferred the entire property in the name of his son the plaintiff.
16. In spite of transferring the property said A Selvaraj received the rent on his behalf and assured he will sell the shop in a portion I.e., schedule property to him.
17. Thereafter plaintiff demanded for rent accordingly he approached A Selvaraj and after several meeting it is agreed by his father that he will repay Rs.3,90,000/- and requested him to execute a lease agreement in favour of plaintiff. As such executed an agreement in favour of plaintiff wherein agreeing to pay Rs.3,90,000/- to him and in terms he got executed agreement dated 25.04.2017 with an assurance that the plaintiff shall not demand to vacate the premises but gone out of his words and filed this suit hence suit it self is not maintainable. This court having no jurisdiction to try this court.
18. Based on the above pleadings now the defendant contended that issues, additional issues have to be framed.
19. At this stage I will turn my attention towards the provision of order 14 Rule 1 and 5 of CPC reads thus;
Framing of issues- (1) issues arise when a material proposition of fact or of law is affirmed by the one party and denied by the other (2). Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant SCCH-22 7 SC No.470/2019 must allege in order to constitute his defence.
(3). Each material proposition affirmed by one party and denied by the other shall from the subject of a distinct issue.
(4) Issues are two kinds:
(a) issues of fact,
(b) issues of law.
5. At the first hearing of the suit the court shall, after reading the plaint and the written statement if any and after examination under rule 2 of order X and after hearing the parties or their pleaders ascertain upon what material propositions of fact of law the parties are at variance, and shall thereupon proceed to frame and record and issues on which the right decision of the case appears to depend.
(6) Nothing in this rule requires the court to frame and record issues where the defendant at the first hearing of the suit makes no defence.
(5) power to amend and strike out issues: (1) the court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
SCCH-22 8 SC No.470/2019(2) The court may also at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.
20. By reading the provision it is very clear that discretion has been given to the court at any time before passing decree court having power to amend the issues or frame additional issues on such terms as it thinks fit and such issues must be necessary for determining the matter in controversy between the parties and it is also discretion of the court at any time issues can be framed or strike out before passing a decree.
21. In the present case on hand defendant not disputed that father of plaintiff was owner of the schedule premises and on perusal of written statement as well as reply defendant admitted and having knowledge in respect of execution of gift deed by A Selvaraj and agreement entered in to between himself and the plaintiff which clearly establishes that the defendant having notice of the ownership over the suit schedule property by virtue of gift deed acquired by him moreover the cruckes of the matter is in respect of tenancy and even if issues framed which are points for consideration and in terms of such issues which will help the parties for the purpose of adducing their evidence to establish their respective case by both oral as well as documentary evidence.
22. Further The Karnataka Small causes court Act 1964 wherein section 8 prescribes in respect of cognizance of suits by Small Causes specified in the schedule as suits excepted from the cognizance and as per schedule 4 (a) to (c) which clearly prescribes and at this stage it is SCCH-22 9 SC No.470/2019 also necessary to mention the same that Schedule 4 (a) to (c):
(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 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;
Section 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."
23. In the existence of the same, here in the present case only substantial issues arising for the decision in respect of the fact whether lease has been determined by efflux of time or terminated by a notice in accordance with law in respect of lease or permission to occupy has been withdrawn. Such being the thing even if issues or points raised by acting under order 14 rule 1 and 5 of CPC in the existence of special statute but for convenience to the court as well as the parties if points for consideration framed though the case tried summarily and by framing points itself will not vitiate the proceedings nor no in justice caused to SCCH-22 10 SC No.470/2019 neither parties, accordingly by framing points in respect of relationship of land lord and tenant in the existence of specific admissions by defendant as well as termination of such tenancy by plaintiff in accordance with law which are sufficient for adjudication in this matter. Further in view of principle laid down in 2000 (1) KCCR 301 between Narayana Shanbhogue Vs Venkataramana Upadhya it is necessary to mention the same thus;
" The question of framing an issue within the meaning of the Order 14, rule 2 (2a) does not arise in the Small Causes Courts. It is more or less a summary procedure wherein points for determination alone are framed and that too for the purpose of concentrating the attention of the parties to the controversy that have arisen between them. Therefore, in my opinion, even the application under order 14, Rule 2 (2a) is not maintainable".
24. So for as with regard to the contention of defendant that the suit is not maintainable as according to him plaintiff is not the owner of the schedule premises, on the other hand his father being owner under whom he is a tenant on a monthly rent and according to him no document produced to prove his tenancy and the relationship between them. There is no force in his contention.
25. Even though issues not framed by this court but the provision it self gives discretion may at any stage before passing decree that to discretion of the court for proper adjudication moreover plaintiff already SCCH-22 11 SC No.470/2019 examined himself as PW.1 and got marked notice, postal receipt postal acknowledgment, reply at Ex.P1 to Ex.P4. Further also PW.1 has been partly cross examined by defendant and suggestion also made to pw.1 that he is paying rent of Rs.5,000/- regularly from 2016.
26. Further it is the contention of defendant that the father of plaintiff received Rs.3,90,000/- from him accordingly the suit is not maintainable and this court having no pecuniary jurisdiction to try the suit. But defendant not stated whether the said amount of Rs.3,90,000/- received by father of plaintiff as monthly rent or arrears or advance. On the contra it is his specific contention that in order to sell a portion of the schedule premises, the father of plaintiff received the said amount as advance, this admission itself is very clear that the said advance amount is nothing to do with this case that to according to defendant agreement already entered in to between him and the father of plaintiff for repayment of the same, such being the thing more over during cross- examination he made suggestion to PW.1 at one part that since from 2016 he was paying regularly rent of Rs.5,000/- p.m and in the written statement para 2 he clearly mentioned that his father A Selvaraj executed an agreement on 25.04.2017 that to his father made assurance to him that he will sell the suit schedule property to him. If so as admitted by defendant agreement already in existence entered in to between them for repayment of the said amount, such being the thing he could have enforce it and in respect of the said agreement he is having liberty as well as right to recover the same but not in this case claiming and disputing the title of the ownership in the existence of admission by himself in respect of gift deed as well as agreement entered in to SCCH-22 12 SC No.470/2019 between himself and the plaintiff.
27. Further more the defendant being tenant under plaintiff that he himself admitted the execution of agreement though the document not produced and marked but a xerox copy of the said agreement produced by learned counsel for plaintiff which clearly establishes the same at this stage as the evidence of PW.1 not yet concluded. Such being the thing defendant being tenant is estopped from questioning the title of the owner. Further suggestions made to PW.1 during cross-examination that the suit schedule property was gifted to him by his father which itself is very clear that though defendant raised contention that he is not tenant under him but under his father, even if so on perusal of entire materials available on record and on perusal of copy of agreement dated 03.05.2017 produced by plaintiff entered in to between himself and the defendant it has been clearly mentioned in the agreement that the monthly rent wherein the tenancy commencing from 01.05.2017 for 11 months subject to renewal of lease after expiry of lease period which has not at all been denied by defendant.
28. Further it is not the case of defendant that no such agreement entered into between them, on the contra it is his specific contention under the reply as well as para 2 of his written statement at this stage it is relevant to mention the same that;
" In spite of transfer of the property the said M. Selvaraj receiving the rents on his behalf from the defendant and assured the defendant that he will sell the shop portion which is schedule property to the defendant. Thereafter the SCCH-22 13 SC No.470/2019 plaintiff demanded the rents from the defendant, when this fact came to know by the defendant, the defendant approached the said A. Selvaraj and after several meeting it is agreed by A Selvaraj that he will pay the amount of Rs.3,90,000/- and requested the defendant to execute an lease agreement in favour of the plaintiff. As such A Selvaraj executed an agreement agreeing to pay the amount of Rs.3,90,000/- to the defendant and in turn the defendant executed an lease agreement on 25.04.2017 with an assurance that the plaintiff shall not demand the defendant to vacate the schedule premise, and suggestion also made to PW.1 during cross-examination and at this stage it is also relevant to mention the same that, "ದವ ಸಸತತನನ ನ ಪ ಪತವದಯಯದ ಹಣವನನ ನ ತಗದನಕಕಯಡನ ನಮಗ ಬರದನಕಕಯಡನತತತನಯದನ ಅಗಪಮಯಟ ಮಡದರಯದರ ಸರಯಲಲ"
this suggestion has been denied by PW.1.
29. On looking in to the above suggestions even if so, efficacious remedy is available to the defendant with regard to the said agreement entered into between the father of plaintiff and the defendant relating to repayment of Rs.3,90,000-, but when the defendant at one part agreeing as per suggestion made to PW.1 that he is a tenant on a monthly rent of Rs.5,000/- that to paying it regularly to him since from 2016, on the SCCH-22 14 SC No.470/2019 other part contending that plaintiff is not the owner but his father is the owner that to suggestion made to PW.1 in respect of gift deed that to in the existence of agreement dated 03.05.2017, moreover as contended by defendant it is his specific contention that if the plaintiff received Rs.3,90,000/- as he agreed to sell a portion of suit schedule property in his favour if so what is the necessity to pay the rent that to after execution of agreement on 03.05.2017 as according to him father of plaintiff executed agreement on 25.04.2017 for repayment of Rs.3,90,000/- as per the terms according to him he got executed the lease agreement then what is the necessity for execution of agreement of lease for 11 months on 03.05.2017 in favour of present plaintiff not been established.
30. On perusal of reply, written statement and suggestions made to PW.1 during cross-examination which clearly establishes that defendant is blowing hot and cold simultaneously which is not maintainable in the eye of law.
31. In the existence of admissions made in para 2 of his written statement and reply as well as suggestions during cross-examination more over when efficacious remedy is available to him to proceed against the father of the plaintiff for recovery of the same as agreed by both, accordingly when he himself admitted that an agreement in respect of Rs.3,90,000/- is in existence so also he is not denying the agreement executed by him on 03.05.2017 in favour of plaintiff which holds good and defendant being tenant under plaintiff as admitted by himself more over at this stage whether he is tenant under the plaintiff or not it has to be determined during full pledge trail wherein PW.1 partly cross-
SCCH-22 15 SC No.470/2019examined and in the existence of specific contention raised and admitted by him in respect of agreement dated 25.04.2017 in relation to Rs.3,90,000/- which is not at all the crucks of this matter nor the dispute between the parties which is before the court at present, accordingly the contention raised by the defendant that this court has no pecuniary jurisdiction to entertain the suit as the suit it self is not maintainable, as such liable to be dismissed which are not at all holds good in the eye of law accordingly, I answer point no.1 and 2 partly in the affirmative and partly in the negative.
32. POINT No.4: In view of the above discussion, I proceed to pass the following:
:: ORDER ::
Application filed by defendant under Section 151 of CPC with a prayer to dismiss the suit as not maintainable and IA under order 14 rule 5 CPC framing that additional issue that this court having no pecuniary jurisdiction to try the suit in view of the fact that the father of plaintiff received Rs.3,90,000/- as advance amount as such suit itself is not maintainable accordingly treat it as preliminary issue are hereby dismissed with cost of Rs.2,000/ each.SCCH-22 16 SC No.470/2019
So far as application filed by defendant under order 14 rule 1 R/w 151 CPC to frame issues/ points for determination is hereby allowed.
No order as to costs.
(SHAKUNTHALA.S) XX A.S.C.J. & A.C.M.M., Bengaluru.