(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
suit filed by the plaintiff came to be decreed and confirmed.
2. The factual matrix of the case that is relevant for the
09.07.2005. In spite of the termination of the tenancy and
he failed to do so. Since there was some action by the
to wait for some time. Ultimately, another notice was issued to
possession. However, a false reply was sent by the defendant to
the plaintiff. Therefore, the plaintiff being in need of the suit
2004 and also for the balance of amount due from
the defendant as demanded in the notice issued on
4th July 2005.
iii) To pass decree for ascertainment of mean profits
accrued on the property during the period prior to
the institution of the suit or directing an enquiry
form the date of termination of tenancy i.e. from
the month of august 2005; till the date of filing of
the suit and further the Court be pleased to order
for ascertainment of mesne profits from the date of
suit until delivery of the possession of the
'schedule shop premises' to the plaintiff Trust. As
provided under order XX Rule 12 of C.P.Code.
Cost of notice issued, amount totaling to Rs 1000/-
and cost of the suit be also awarded together with
such other reliefs as found fit to the Hon'ble Court
at the conclusion of the trial as so to meet the
ends of justice in the case, in favour of Trust."
3. On service of the summons, the defendant appeared
and filed his written statement. The defendant denied the
ownership of the plaintiff over the suit schedule property. He
ft X 18 ft was let to the elder brother of the defendant. Initially,
month. The original lessee Dattatraya had constructed a RCC
Dattatraya in the year 1976. The said agreement was extended
entered in the occupants' column of the property extract. There
the share of the defendant. After such allotment, the name of
the defendant was entered in the records as occupant. Further,
4. On the basis of the above pleadings, following issues
1. Whether the plaintiff proves that the
defendant was a lessee of one of the shop
premises where in he was trading in pooja
articles?
2. Whether the defendant proves that he was
lessee at shop site on payment of ground
rent as contended in para 2 and 6 of the
w.s.?
3. Whether the defendant further proves that
the shop building was constructed by the
members of his family and that he is the
owner of the building as contended in para 2
and 6 of the w.s.?
4. Whether the defendant further proves that
the said lease was irrevocable and was
permanent in nature as contended in para 2
of the w.s?
5. Whether the plaintiffs prove that there was a
valid termination of lease of shop premises as
averred in the plaint?
6. Whether the plaintiff proves that, there was
proper and valid termination of lease of
'premises' as averred in the plaint?
7. Whether the defendant proves that, there was
waiver of tenancy as contended in para 4 of
the w.s.?
8. Whether the defendant proves that he had
paid entire amount of rent and that he was
never in arrears, as contended in para 6 and
7 of the w.s?
9. Whether the plaintiff trust is entitled to get
possession of the suit premises from the
defendant as claimed in the suit?
10. Whether the plaintiff is entitled to the
amounts as well as the mesne profits as
claimed in the suit?
11. To what relief the plaintiff is entitled to?
12. What order or decree?"
5. The representative of the plaintiff's Trust was
examined as PW.1 and Ex.P.1 to Ex.P.14 were marked. The
defendant was examined as DW.1 and Ex.D.1 to Ex.D.61 were
marked.
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6. After hearing the arguments, the Trial Court held
issue Nos.1, 5 and 9 to 11 in the affirmative and remaining
issues in the negative and a decreed the suit.
7. Being aggrieved by the same, the defendants
approached the First Appellate Court in R.A.No.19/2013. The
First Appellate Court after re-appreciating the evidence on record
came to the conclusion that, there is no merit in the appeal and
as such, it dismissed the appeal and the defendant was directed
to vacate and hand over the vacant possession of the premises.
8. Being aggrieved, the defendant is before this Court in
second appeal.
9. After hearing the learned counsel appearing for the
appellant, the following substantial question of law was framed
by this Court.
"Whether the Courts below without looking to the
provisions of Section 9 of the Karnataka Small Causes
Courts Act, which confers the exclusive jurisdiction on
the Court of Small Causes, have proceeded to decree
the suit even though they had no jurisdiction?"
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10. The learned counsel appearing for the appellant has
contended that the suit being for ejectment of the defendant
from the suit premises, the Small Cause Court alone has the
jurisdiction to consider the same. He contends that Section 9 of
the Karnataka Small Causes Courts Act, 1964 (for short,
hereinafter referred to as 'the Act') defines the jurisdiction of the
Small Cause Court and when, the jurisdiction is vested with the
Small Cause Court, a regular suit is not maintainable. Secondly,
he contends that the notice was issued on 19.11.2004 and it was
received on 22.11.2004, but the suit is filed on 01.01.2009 and
therefore, the suit is barred by limitation. In other words, it is his
contention that notice issued in the year 2004 is waived and
therefore, the tenancy has continued. Thirdly, he contends that,
earlier, the present appeal was tagged with some other regular
second appeals and in the said regular second appeals, the
diagonally opposite view was taken and it was held that the
Court has no jurisdiction. Fourthly, he contends that only land
was granted on lease and the lease was in favour of the brother
of the defendant. The building was constructed by the defendant
and therefore, the plaintiff cannot maintain an eviction suit.
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11. Per contra, the learned counsel appearing for the
respondents submits that there is no notification which confers
jurisdiction on the Small Cause Court at Kumta. Therefore, the
Act does not apply and as such the suit filed before the Regular
Civil Court is maintainable. So far as the notice is concerned, he
contends that a subsequent notice was issued on 01.11.2008
and it was received by the defendant on 04.11.2008. Therefore,
there is no such waiver of the termination of the tenancy. He
contends that after termination, the defendant has continued as
a trespasser and the rents are not paid. Therefore, the judgment
and decree passed by the Trial Court and the First Appellate
Court are sustainable. So far as the contention that the building
has been constructed by the brother of the defendant is
concerned, it is submitted that presently the defendant is
occupying the premises and since it is an admitted fact that
there was a partition, there is no need for impleadment of the
brother of the plaintiff. Moreover, the ownership of the building
and lease of the ground is a settled proposition and the
defendant cannot take such a defence. Hence, he prays for
dismissal of the appeal.
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12. It is pertinent to note that the contentions in respect
of the termination of the tenancy; in the earlier suit diagonally
opposite view being taken; only land was granted on lease but
not the building etc., are no more available for determination in
this appeal, since they are questions of fact.
13. In the second appeal, it is only the substantial
question of law, which needs to be considered.
14. Therefore, the above substantial question needs to
be dealt by this Court.
15. The first contention of the learned counsel appearing
for the appellant is that the provisions of Section 9 of the Act do
not permit the ejection petitions to be tried by any other Court
than the Court of Small Causes. The provisions of Section 9 of
the Act, reads as below:
"Section 9: Exclusive jurisdiction of Court of
Small Causes.- Save as expressly provided by this Act
or by any other law for the time being in force, a suit
cognizable by a Court of Small Causes shall not be tried
by any other Court having jurisdiction within the local
limits of the jurisdiction of the Court of Small Causes by
which the suit is triable."
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16. There cannot be any doubt that a matter which falls
within the jurisdiction of the Court of Small Causes cannot be
tried by any other Court. The provisions of Section 2(b) defined
the Small Causes Court as below:
2. Definitions.-
(b) "Court of Small Causes" means a Court of Small
Causes constituted or deemed to have been
constituted under this Act and includes any person
exercising jurisdiction under this Act in any such
Court."
17. It is pertinent to note that Section 8 of the Act
defines the suits that may be taken cognizance of by the Court of
Small Causes and it reads as below.
"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 exception 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 [two lakh rupees] in Bangalore city, and
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[one lakh rupees] in other places, shall be cognizable
by a Court of Small Causes."
18. The Schedule is couched in negative sense and it
defines the exceptions. Article 4 of the Schedule reads as below:
"(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;"
19. Therefore, if a suit falls within Article 4 of the
Schedule, then such suit cannot be taken cognizance of by a
Court of Small Causes.
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20. In this regard, the learned counsel appearing for the
appellant places reliance on the judgment in the case of Abdul
Wajid v. A.S. Onkarappa1. The said judgment of this Court
decided whether the earlier judgment of the High Court in the
case of Smt.Sarojamma vs. K.M. Venkatesh2 continued to be
good law or not. The following question was referred to the full
Bench.
(i) Whether the Court of Small Causes constituted
under KSCC Act has jurisdiction to take
cognizance of suit filed for ejectment by the land
lord against the tenant in respect of the premises
to which KR Act does not apply, and the lease of
which has either come to an end by efflux of time
limited thereby or has been duly determined by
issuing notice in accordance with law or the
permission to occupy has been withdrawn?
(ii) Whether the decision of the division bench
in Sarojamma's case (supra) lays down correct
law?
21. The above questions were answered in paragraph
No.104 and 116 as below:
ILR 2011 KAR 229
ILR 2004 KAR 4931
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"104. It is also necessary for us to clarify one
another aspect while we are on this question, namely,
that having regard to the object and purpose of
enacting the KSCC Act and creating a special class of
Civil Courts known as 'Courts of Small Causes' which
are nevertheless Civil Courts but with a limited
jurisdiction and also relieved from the rigors of
procedure as contemplated under the Code of Civil
Procedure, particularly, in providing for trial of suits in a
summary manner, a suit which is triable before a Small
Causes Court and could result in a decree either for
eviction in an ejectment suit or for any other purpose
including recovery of money, if should have been
tried by a regular Civil Court and which Court
otherwise also has the jurisdiction to try all
disputes of civil nature, notwithstanding the
provisions of Sections 8 and 9 of the KSCC Act, we
are of the definite view that a suit which could
have been otherwise required to be tried before a
Small Causes Court but had been tried before a
regular Civil Court and had culminated in a
Judgment and decree, such a decree following a
full course trial by the regular Civil Court cannot
be and should not be characterized as a decree
without jurisdiction for the purpose of examining
the correctness or otherwise of the decree but
based solely on the question of jurisdiction.
xxxxx
116. For the same reason, I am of the view that
the provisions of the Karnataka Court fee & Suits
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Valuation Act, 1958 are also not one that can guide or
control interpretation or the understanding of the
provisions of Clause-[4] of the schedule to the KSCC
Act. Even here, the meaning to be given to sub-Clause
[b] of Clause-4 of the schedule to the KSCC Act and to
the word 'rent' and use of the word 'rent' in this sub-
clause is only in the context of determining the
pecuniary jurisdiction of the Court of small causes and
is not so much concerned with the question of the
nature of payment made or that has to be made by a
tenant holding over, to his landlord, for use and
occupation beyond the period of lease/authorization
and such payment while is not to be characterized as
rent, is to be characterized as 'compensation/damages'.
The use of the word 'rent' in this sub-Clause is only for
the purpose of arriving at the valuation of the suit for
ejectment before the Court of small causes and no
more significance or importance needs to be attached
to the word 'rent' in this sub-Clause. But for this
elucidation, I am in full agreement with the conclusion
as opined by my Learned colleague Justice K.N.
Keshavanarayana.
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
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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.
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
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its pecuniary limits, in respect of the premises to
which KR Act is not 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."
[emphasis supplied]
22. Thus, it is evident that the judgment of the full Bench
in Abdul Wajid (supra) does not approve the exclusivity of the
Court of Small Causes to consider a claim for possession post the
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trial and judgment by regular Court. It is pertinent to note that
in the case of Manzoor Ul Haq vs. Hakeem, Mohsin Ali3, it
was held that the Section is only enabling provision and it does
not say that no other Court than the Court of Small Causes have
jurisdiction to take cognizance of the suits of the nature
specified. A Court of Small Causes have the jurisdiction to try all
the suits of civil nature, of which the value does not exceed the
specified value and which are not accepted from cognizance of
Small Causes, as contained in a schedule.
23. A plain reading of Sections 8 and 9 coupled with the
schedule, which is reproduced (supra) would indicate that if a
suit for possession of immovable property or for recovery of an
interest in such property, but not including a suit for ejectment is
filed and if it falls in any of the seven categories mentioned in
sub-Articles 4(a) to 4(c), then the suit is permissible to be filed
before the Small Causes Courts. It is pertinent to note that it is
an enabling provision for the Small Causes Court, but it does not
constitute exclusive jurisdiction. It is also relevant to note that in
yet another decision of Allahabad High Court, in the case of
AIR 1970 Allahabad 604
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Abdul Hamid vs. IIIrd Additional District Judge, Mainpuri
and another4, Allahabad High Court had held in paragraph
No.15 as below:
"15. Thus, in the circumstances it is held that the
small causes courts are courts of preferential
jurisdiction and not exclusive jurisdiction and as
Section 15 (1) of the Provincial Small Causes
Court Act confers jurisdiction upon Small Causes
Courts to try a suit for possession based on
contract of tenancy of a building, it enables the
small causes courts to take cognizance of a suit
between lessor and lessee, but it did not exclude
the jurisdiction of civil court to try the case as a
regular civil suit and therefore a decree passed by
civil court in a suit of small causes court nature
will be valid and not a nullity."
24. In view of the above propositions laid down, it is
evident that a Court of Small Causes can take the cognizance of
a matter which is fundamentally an ejectment claim. It does not
mean that it is in the exclusive domain of the Small Causes
Court. If a suit for possession is filed, then the regular Court is
not ousted of the jurisdiction as concluded by the full Bench of
this Court. Therefore, when the plaintiff has chosen the forum of
1999 SCC Online All 827
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regular Court and the question of jurisdiction was not raised by
the appellant at the first instance, it cannot be held that the
judgment is bad in law. It is also pertinent to note that
complicated questions of law like the partition among the
appellant and his brother, construction of the superstructure by
the lessee are all raised by the appellant. In the case on hand,
the prayer of the plaintiff is for possession, balance of the rent
due and for mesne profits also. Obviously, the mesne profit
requires an enquiry, if a decree has to be passed to that effect.
Therefore, when we examine the pleadings of the parties, it is
evident that the nature of the prayer and the nature of the
defence raised by the defendant traverse the scope of the suit,
beyond the limited jurisdiction of the Small Causes Court.
Definitely, it can be held that the prayers and the defence do not
fall within the four corners of clause 4 of Schedule 1 of the Small
Cause Court Act. Thus, no fault can be found in respect of the
findings given by the Trial Court and the First Appellate Court.
25. The reliance placed by learned counsel appearing for
the appellant on the judgment in the case of Abdul Wajid
(supra) is of no relevance. As held in the afore cited case and it
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being the settled position of law, the question of jurisdiction has
to be raised by the defendant at the first instance. He cannot be
allowed to raise the same without showing the prejudice caused
to him. The appellant has not shown as to how his interest are
put to prejudice. The Civil Court is not ousted of the jurisdiction
otherwise than the jurisdiction of the Court of Small Causes.
26. In the result, the substantial question of law raised
by this Court is answered in the negative.
27. So far as the other contentions urged by learned
counsel for the appellant is concerned, it may be noted that the
first notice terminating the tenancy was issued on 19.11.2004
and subsequently, another notice was issued on 01.11.2008.
Therefore, the contention that the first notice is waived is not
tenable. The tenancy, even if it is held that had continued after
the termination notice dated 19.11.2004, stands terminated by
the second notice dated 01.11.2008. Therefore, there is no such
waiver, which can be deciphered.
28. The contention that in other appeals a diagonally
opposite view is taken cannot be a ground in the present appeal.
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Such judgments are not cited. Such view might have been taken
in the circumstances that were available and obtained in that
appeal. Therefore, this contention of the learned counsel for the
appellant is also not sustainable in law.
29. The last contention insofar as the dual tenancy of the
superstructure and the land is concerned, it is no more res
integra. The building was constructed by the defendant at his
own costs and consequences. Therefore, the defendant cannot
contend that he owns the superstructure and he constructed the
superstructure and as such he cannot be evicted is
unsustainable. There is no such concept of the ownership of the
superstructure and tenancy of the land beneath it. Obviously,
this contention was not at all raised either before the Trial Court
or the First Appellate Court.
30. The First Appellate Court in paragraph No.16 has
considered the effect of Sections 106 and 107 of the Transfer of
Property Act, 1882 and has dealt with the matter in accordance
with law. There cannot be any doubt about the tenancy of the
defendant, as has been noticed by the First Appellate Court. On
examining Ex.D.18 and Ex.D.19, it was held that the shop of
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premises was in existence in the year 1976 itself, when the
defendant and his brother entered into a tenancy agreement.
Therefore, the defendant cannot take up the contention that
there was no such agreement between them, but it was only a
letter of trust.
31. For aforesaid reasons, this Court does not find any
cause to interfere with the impugned judgment. Hence, the
appeal is bereft of any merits and the same is liable to be
dismissed.
32. Accordingly the appeal is dismissed with costs.
SD/-
(C M JOSHI)
JUDGE
YAN: Para 1 to 3
SSP: Para 4 to 13
