Karnataka High Court
Abdul Wajid And Ors. vs A.S. Onkarappa And Ors. on 27 November, 2007
Equivalent citations: ILR2008KAR120
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. All these civil revision petitions are admitted for examination.
All these civil revision petitions under Section 18 of the Karnataka Small Causes Court Act, 1964, (for short 'the Act') either by the landlords or the tenants, invariably the landlords figuring as plaintiffs in the Small Causes suits which were for ejectment of the person occupying the premises, recovery of which was sought for by the landlords, are revision petitions which arise for examination in the context of the tenants who have suffered eviction orders, contending that such ejectment suits were not maintainable in the light of the law as laid down by the division Bench of this Court in the case of Sarojamma v. K.M. Venkatesh ILR 2007 KAR 309.
2. While disposing of the civil revision petition which had been placed before the division Bench and arising in the context of the very question as to the maintainability of a suit for ejectment under thepro visions of the Act, particularly, having regard to the provisions of Section 8 of the Act read with Article-4 of schedule to the Act, the division bench of this Court had an occasion to sum up the questions framed as under and answered the three questions in paragraph 34 of this Judgment which reads as under:
Proposition No. 1 - Can Small Causes Court take cognizance of only such suits which are filed seeking ejectment of tenants of the premises to which the Karnataka Rent Act applies and not in respect of tenants who occupy the premises and whose tenancy has been determined or come to an end since in such case the remedy is only before the Civil Court?
Answer - Affirmative The Small Causes Court can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which Karnataka Rent Act and not in respect of the tenants / persons who occupy other premises to which the Act does not apply and whose tenancy has been determined or has come to an end either by efflux of time or by withdrawal of the same.
Proposition No. 2 - Can Small Causes Court take cognizance of suits filed seeking ejectment and rent even in respect of the premises to which Karnataka Rent Act is not applicable, subject to there being no prayer for mesne profits, damages and / or compensation, provided the valuation of the same being within the pecuniary jurisdiction?
Proposition No. 3 - Can Small Causes Court take cognizance of suits filed seeking ejectment, rent, damages mesne profits etc., even in respect of the premises to which Karnataka Rent Act is not applicable, provided the valuation of the same being within the pecuniary jurisdiction.
Answer - Negative In respect of the ejectment of the tenants in respect of the premises to which the Karnataka Rent Act does not apply, relief would have to be sought for by filing an appropriate suit before the City Civil Court which alone can entertain such suits even if bare ejectment or ejectment and arrears of rent is sought.
The division bench also had an occasion to clarify certain confusions said to be arising in the context or three different judgments of this Court.
3. Appearing for some of the revision petitioners, wherein the landlords figure as revision petitioners and who have lost the suit for ejectment either due to the application of the law as clarified in Sarojamma's case or now face the prospect of their suits being dismissed in these revision petitions by applying the law as laid down in Sarojamma's case, Sri Surana, Sri Suresh, Sri Vighneshwar S Shastri, Sri Shamanna, learned Counsel in CRP Nos. 254 of 2006, 664of2007,713 of2004,461 of2007 respectively, have nevertheless submitted beforet his Court that the confusion is not really removed, if at all the Judgment of the division bench has only added to the confusion; that the view taken by the division bench is not sustainable on a proper understanding or interpretation of the provisions of Section 8 read with Article-4 of the schedule to the Act; that the interpretation placed by the division bench on the scope of Entry-4 of the Schedule to the Act virtually shuts out the options or the need for filing the ejectment suits before the Court of Small causes; that understanding virtually amounts to rewriting the provisions of Section 8 read with Entry-4 of the schedule to the Act; that even the small segment of ejectment suits that were left within the jurisdiction of a Court of small causes and on applying the three conditions mentioned in Article-4 which reads as under:
(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.
are also now excluded from the scope of examination by a Court of small causes; that it virtually amounts to restricting the provisions and taking away the jurisdiction that had been conferred on the Court of small causes under the provisions of Section 8 read with Article-4 of the Act.
4. It is also submitted by all learned Counsel appearing for such petitioners and on behalf of the landlords that there is a fallacy in accepting the arguments canvassed before the division Bench that Clause (b) of Article - 4 is one which should be understood as a provision conferring jurisdiction on the Court of small causes to entertain a suit for ejectment only in a situation where rent is payable and not in any other situation; that if such an interpretation is placed, it virtually reduces the scope of the provision for maintaining an ejectment suit before such Court to almost 'nil1; that the provisions of Clause (b) of Article-4 should have been understood in the context of enabling a Court of small causes to entertain a suit for ejectment, while the limitation placed being that of the pecuniary jurisdiction on the Court which in the case of suits for ejectment is regulated by Section 41 of the Karnataka Court fee and Suits Valuation Act, 1958, as the valuation for such a suit is governed by this provision which will be the annual rental value of the premises when the premises was governed by the terms of the lease etc.,
5. It is submitted that if such interpretation which is the correct interpretation to be placed on this statutory provision is accepted, then all those suits for ejectment wherein the suits if valued under the provisions of Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958 are within the pecuniary jurisdiction of a Court of small causes, then such suits can be maintained and the word 'rent' used in Clause (b) of Article - 4 of the schedule to the Act cannot be understood as one which insists on a situation when rent was still payable by the defendant and it is such erroneous interpretation placed on the understanding of Clause (b) which is required to be reconsidered, such is the submission on behalf of the petitioners.
6. This argument on behalf of the petitioners-landlords is countered and the opposite view is canvassed by Sri Shaker Shetty, learned Counsel. Though Mr. Shetty also appears for landlords, he would nevertheless in fairness concede to the binding nature of the law as declared by this Court in Sarojamma's Case which if applied would result in dismissal of the civil revision petitions and the landlord being compelled to approach the Civil Court with a fresh suit for achieving the object and not to canvass the correctness of this Judgment in these revision petitions and has submitted that the view taken by the division Bench in Sarojamma's Case Supra is the correct view, justified on the facts and circumstances and on a proper understanding of the provisions of the Karnataka Rent Control Act, 1961, Karnataka Rent Act, 1999, history of the legislation of Karnataka Small Causes Court Act, 1964 and a proper understanding of the provisions and the concept of Court of small causes' as defined in Section 2(b) of the Karnataka Small Causes Courts Act, the definition of civil court' as defined in Section 2(b)of the Karnataka Civil Courts Act, 1964 and the definition of 'city civil court' as undestood in Section 2(3) of the Bangalore City Civil Courts Act, 1979 which definition should be read in conjunction with Section 5 of the Specific Relief Act, 1963 providing for recovery of specific immovable property in terms of the provisions of the Code of Civil Procedure as also the provisions of Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958.
7. Submission of Sri Shaker Shetty, learned Counsel, is that on a combined reading of these provisions it is obvious that Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958 is a provision which can be called in aid only in a situation where the suit is for recovery of possession of a full or part of immovable property or interest in the immovable property before the Civil Court and not before the Court of small causes and therefore Section 41 cannot be employed for valuing the suit for ejectment before the Court of small causes and if that is excluded the situation where the condition (b) can be said to be applied is only in a situation where the tenancy had come to an end either by efflux of time or by determination of the lease and the person is possession was holding over, then it is no more rent that is payable but only damages and if at all mesne profits within the meaning of the expression as it occurs in Section 2(12) of the Code of Civil Procedure and therefore for maintaining a suit for ejectment before a Court of small causes, three conditions mentioned in Article-4 should operate cumulatively and as there is no factor of rent being payable in terms of Clause (b) of Article 4 of the schedule to the Act and being not a possibility unless it is a situation where in respect of the premises the provisions of the Karnataka Rent Act is also applicable and therefore it can bring about a situation where notwithstanding the lease having come to an end by efflux of time or in any other manner, the tenant being protected under the statutory relationship and nevertheless being liable to pay rent, that is the only situation which can be said to be a possibility of rent being payable and therefore a suit for ejectment before a small causes Court will be maintainable only if the premises is also one governed by the provisions of the Karnataka Rent Act, 1999 and not otherwise and therefore the view taken by the division bench is the correct view that it does not call for either review or doubting the same and urges that this law should be applied and the revision petitions disposed of accordingly.
8. The other submission of Sri Shaker Shetty, learned Counsel who is canvassing the view that the ratio of Sarojamma's Case Supra, as decided by the division Bench should be applied to all these cases and revision petitions disposed of accordingly is that for the purpose of valuing the subject matter of ejectment suit before the small causes Court the valuation can only be based on the market value of the property whose possession is sought to be recovered in terms of Section 29 of the Karnataka Court Fee and Suits Valuation, 1958 and not under Section 41 of this Act for the reason that the alternative valuation that can be adopted under Section 41 i.e., valuing the suit at the annual rent payable in respect of the premises under Section 41 can only be in respect of suits instituted before the civil Courts and not before a Court of small causes.
9. It is for this reason, learned Counsel has referred to definition of'civil court' as it occurs in the Karnataka Civil Courts Act, 1964 and has submitted that if the valuation of the subject matter of the suit is on the basis of the market value of the property sought to be recovered, then inevitably such valuation goes out of pecuniary jurisdiction fo the Court of small causes and for this reason also the suits for ejectment is not maintainable before the Court of small causes.
10. While even accepting this argument, one possibility is that such ' suits should have been returned to the plaintiff for presentation before the Court having jurisdiction, that situation may arise only if the contention of Mr. Shaker Shetty, learned Counsel, that Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958 is applicable only in respect of suits before a Civil Court and not in respect of ejectment suits before the Court of small causes.
11. I have given my anxious consideration to the rival submissions made at the Bar. Section 3 of Code of Civil Procedure indicates the hierarchy of Courts and it is indicated therein that a Court of small causes is subordinate to the High Court and the District Court. A Court of small causes is very much in the scheme of things under CPC which provides the procedure to be followed by all civil courts. By implication a Court of small causes is necessarily a Civil Court.
12. Section 7 of the Code while deals with the provincial small causes Courts and indicates the scope and applicability of the provisions of the Code, Section 8 does likewise in respect of a presidency small causes Court. Section 9 occurs in Part-I, which generally speaks about the jurisdiction of Courts and which should be necessarily understood that a Court of small causes is also a Civil Court particularly for the reason indicated therein that Courts have jurisdiction to try all suits of civil nature, excepting of suits of which their cognizance is either expressly or impliedly barred. That means all Courts trying suits involving disputes of civil nature are necessarily Civil Courts.
13. Neither the word 'Court' nor phrase 'Civil Court' is defined in the Code of Civil Procedure. However, Sections 5, 6, and 7 relate to 'revenue Court', 'pecuniary jurisdiction' and 'provincial small cause Courts' respectively.
14. But, Section 9 of the Code of Civil Procedure relates to disputes of civil nature which are triable by Courts. Therefore, while the concept of Court' and 'Civil Court' has to be inferred by the proper understanding of these words and while there is no denying the fact that 'Court of small causes' is also a 'Court', contention urged is that it is not a 'Civil Court'.
15. This question can be resolved only by looking into the provisions of Section 9 of the Code of Civil Procedure and viewed from this angle, any Court which has the jurisdiction and competence to resolve disputes of civil nature should necessarily be understood as 'civil court'.
16. A suit for ejectment can be understood as a suit for recovery of possession where ownerhsip of the plaintiff is not in dispute.
17. 1 am unable to accept the contentions of Sri Shaker Shetty for the reason that the concept of Civil Court is not one as is sought to be contended by Sri Shaker Shetty, learned Counsel but is linked to suits involving disputes of civil nature as understood under Section 9 of the Code of Civil Procedure. Whether a suit for ej ectment is before a Court of small causes, Civil Court or even city civil court, they are all suits involving disputes of civil nature and courts trying such cases are all civil Courts. Though the phrases 'court of small causes', 'civil court' and 'city civil court' might have been defined in the respective enactments, it is only for the purpose of institutional distribution of suits involving disputes of civil nature amongst these designated courts and having regard to the place or area within which the cause of action for institution of the suit arises. Therefore, the Court of small causes is essentially a civil court, remains a civil court and it is not as though it is one to be excluded from the purview of the phrase 'civil courts' as used in Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958. The phrase in this Section is only in the context of the Courts competent to try suits involving disputes of civil nature. It is for this reason, I am unable to accept the supporting submission canvassed by Sri. Shaker Shetty, learned Counsel.
18. The question is as to whether a suit for ejectment is maintainable before a Court of small causes even when the premises is not governed by the provisions of the Karnataka Rent Act, 1999 as the view taken by the division bench is if the premises is not so governed by the provisions of the Karnataka Rent Act, the suit for ejectment is not maintainable before the Court of small causes.
19. I find that the scope of a suit for ejctment before the Court of small causes is governed and regulated by the provisions of Section 8 read with Article - 4 of the schedule to the Act. There is no dispute or ambiguity about this proposition. Therefore the scope of this provision and the scope for maintaining a suit for ejectment which is a specie of suits for recovery of possession should necessarily be examined from the language employed by Section 8 read with Article 4 of the schedule to the Act. While the suits for recovery of possession of immovable property or interest in the immovable property are generally excluded from the jurisdiction of Court of small causes, nevertheless, a small segment of such suits are left within the jurisdiction of Courts of small causes which are in the nature of ejectment suits mentioned in Article-4 and on compliance with the conditions (a) to (c) mentioned therein and all the three conditions being satisfied simultaneously.
20. The first condition is one that insists that there should have been jural relationship of landlord and tenant any time prior to the institution of the suit. The second condition is one of limiting the jurisdiction further to the pecuniary jurisdiction of the Court of small causes. It is in determining the scope of pecuniary jurisdiction the confusion has arisen and that has spilled over to understanding the provision as one determining the question of payment of rent in a suit for ejectment.
21. On an examination of this provision and as this provision is required to be examined independently and not with reference to any of the provisions of either the Karnataka Rent Control Act, 1961 or Karnataka Rent Act, 1999,1 would take the view the the scope of Clause (b) restraining the jurisdiction of Court of small causes should be understood as one which says the scope is co-extensive with the pecuniary jurisdiction of the Court of small causes and nothing more. As of now, the pecuniary jurisdiction of the Court of small causes is Rs. 1,00,000/-. Therefore, all those suits whose valuation comes within Rs. 1,00,000/- and within the limitation as placed under Section 8 can be maintained before the Court of small causes. In so far as the valuing the suit for ej ectment is concerned, it is governed by Section 41 of the Karnataka Court Fee and Suits Valuation Act and it is the submission on either side. If one should look at the provisions of Clause (c) of Article 4, it becomes obvious that the scope for examination in a suit for ejectment before the Court of small causes, should be necessarily confined to questions as to whether the lease has been determined by efflux of time of has been determined by a notice in accordance with law or if it was a licence whether the licence or permission has come to an end. That means the occupation of the defendant in the premises having become unauthorized or not permitted anymore.
22. If such questions are the ones in the context of which Court of small causes can decree a suit for ejectment and which necessarily by implication ensures compliance with Clause (a) of this Article, the only other limiting factor is Clause (b), the maintainability of a suit or suit which the Court of small causes would be competent to take cognizance of. The limitation placed here in terms of Clause (b) is that the Court of small causes should be competent to take cognizance of a suit for the rent of the property. In a suit for recovery of the property, the limiting factor is only the pecuniary jurisdiction and nothing else. The significance of the word 'rent' used in Clause (b) is for the purpose of determining the pecuniary jurisdiction of the Court of small causes. Even otherwise, a suit for recovery of rent could have been filed before the Court of small causes, if on valuation of the subjet matter for the purpose of payment of Court fee and jurisdiction if the suit is within the pecuniary jurisdiction of the Court and the suit for recovery of rent can certainly be maintained before the Court of small causes. But, in a suit for ejectment, the question will be only one of valuing the suit for ejectment in terms of the provisions of the Karnataka Court Fee and Suits Valuation Act, 1958 or any other provision. Therefore, when the provisions of Section 41 of the Karnataka Court Fee and Suits Valuation Act, 195 8 is attracted and if the requiement for valuation under this Section is satisfied, then the only limiting factor will be if the suit as valued under Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958 is one in respect of which a Court of small causes is competent to take cognizance of. That means if the valuation as per the provisions of Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958 or under any other provision for that matter is within the pecuniary jurisdiction of the Court of small causes, then a suit for ejectment can be taken up for examination as it is within the scope of Clause (b) of Article 4 and is maintainable before the Court of small causes. The explanation to Section 41 of the Karnataka Court Fee and Suits Valuation Act, 1958 which reads as under:
41. Suits between landlord and tenant-
(1) In the following suits between landlord and tenant in civil courts, namely:
(a) for the delivery by a tenant of the counterpart of a lease or for acceptance of patta in exchange for a muchalika;
(b) for enhancement of rent;
(c) for the delivery by a landlord of a lease or for obtaining a patta in exchange for a muchalika;
(d) for recovering occupancy of immovable property from which a tenant has been illegally ejected by the landlord;
(e) for establishing or disproving a right of occupancy;
fees shall be levied on the amount of rent for the immovable property to which the suit relates, payable for the year next before the date of presenting the plaint.
(2) In a suit for recovery of immovable property from a tenant including a tenant holding over after the termination of a tenancy, fee shall be computed on the premium, if any, and on the rent payable for the year next before the date of presenting the plaint.
Explanation.- Rent includes also damages for use and occupation payable by a tenant holding over.
leaves one with no doubt that the phrase 'rent' is used here also for 'damages' and it is interchargeable. Also the word 'tenant' is used and includes even a person holding over after the determination of the tenancy.
23. But, such being not the view taken by the division bench and even such suits having been held to be barred for examination or consideration by the Court of small causes, I am of the definite view that the interpretation placed by the division bench, particularly on Clause (b) of Article-4 of the schedule to the Act is one having the effect of taking away or whittling down even the limited jurisdiction of small causes Court in respect of suits for ejectment and therefore the interpretation of this nature requires a relook and particularly as ultimately the provisions of Section 8 read with Article 4 of the schedule to the Act are required to be examined in the context of these very provisions for the purpose of examining the width of the jurisdiction of Court of small causes in entertaining a suit for ejectment and not necessarily with reference to the provisions of any Rent Control legislation.
24. I am of the view that the scope and width or jurisdiction cannot be curtailed or whittled down by any other enactment, particularly, by referring to the provisions of the Karnataka Rent Control Act, 1961 or the Karnataka Rent Act, 1999 as has been done in 'Sarojamma's Case Supra.
25. While I am of the view that the view taken and the law laid dwon by the division bench in Sarojamma's case Supra does not necessarily lay down the correct law and requires reconsideration, the next question is what course of action should be resorted to, if the matter is to be re-examined.
26. In this regard, Sri Surana, learned Counsel for the revision petitioners who are all landlords and who are canvassing for reconsideration of the view as indicated by the division bench in Sarojamma's Case Supra, submits that while a decision rendered by a division bench is definitely binding on the single bench if in a given situation, the single bench finds that the view as indicated by the division bench calls for re-examination, it is not open to the single bench to disagree with such view by itself, but the matter can be directed to be placed before the Hon'ble Chief Justice for constituting an appropriate bench for consideration of this question. In this regard, Sri Surana, learned Counsel would bring to the notice of the Court the Judgments of the Supreme Court in the following cases:
(a) Lala Shri Bhagwan and Anr. v. Ram Chand and Anr. .
(b) Sundarjas Kanyalal Bhathjia and Ors. v. The Collector, Thane, Maharashtra and Ors. .
27. The view expressed by the Supreme Court in all these cases which has been the view initally taken in the year 1965 and was followed in the subsequent cases is that the single bench can refer the matter to be placed before the Hon'ble Chief Justice for constituting an appropriate Bench indicating the need for the same and should not decide by itself.
28. Sri Surana, learned Counsel would also place reliance on the decision of the Supreme Court in the case of 'Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. in support of such submission.
29. On the other hand, Sri Shaker Shetty, learned Counsel espousing the contrary view submits that under the Karnataka High Courts Act, 1961, the scope for referring the matter to a division bench is to be found in Sections 8 and 9 of this Act and points out that while a single bench of the Court can refer the matter to a division bench, it is not open to the single Judge to refer the matter directly to a full Bench and submits that if the division bench is of the view that earlier view taken by another division bench requires reconsideration, the subsequent division bench can in turn refer the matter to a larger Bench or full bench etc., and it is not open to single Bench to directly refer the matter to the full Bench or larger Bench.
30. However, Sri Shaker Shetty, learned Counsel would concede that the option as indicated by the Supreme Court in the cases relied upon by Sri Surana, learned Counsel for the petitioner is also one option in such a situation.
31. In the light of such legal position, 1 am of the view that it is appropriate to direct the registry to place these matters before the Hon'ble Chief Justice to constitute a Bench of necessary composition which can examine these questions and for the purpose of settling the law and clearing the doubts as expressed in this order and as canvassed by learned Counsel for the parties rather than to refer the matter to a division bench as it is more appropriate to leave the discretion to the Hon'ble Chief Justice to refer the matter to a division Bench or larger Bench having regard to the circumstances indicated in the above order.
32. Registry to place these matters before the Hon'ble Chief justice for appropriate orders.
33. Interim orders granted in all these petitions are extended until further orders and it is open to the parties to move the Bench before which the matter is listed for further orders.