S. D. PATEL v. H. R. THIPPAIAH — 1979 DIGILAW 32 (KAR)

( 1 ) IN this revision petition under S. 50 (1) of the Karnataka, Rent Control act, 1961 (hereinafter referred to as 'the 1961 Act) the petitioner who was the respondent in H. R. C. No. 3833 of 1975, has challenged the order dated 27-10-1977 of the III Additional Civil Judge, Bangalore City, allowing the application made by the respondent who was the 'petitioner in that case. In the course of my order, I will refer to the parties to the position they occupied in the Court below. ( 2 ) ADMITTEDLY the petitioner is the owner of the first floor of the main house bearing No. 293 situated in Sadavashiva Nagar (Palace Upper Orchards), bangalore City, (hereinafter referred to as the premises) which is the subject matter of dispute between the parties. On 10-11-75, the petitioner instituted a proceeding in the Court of the Munsiff, Bangalore, which came to be later transferred to the Civil Judge by virtue of the amendments made to the 1961 Act by the Karnataka Rent Control (Amendment) Act, 1975 (Karnataka Act No. 31 of 1975) for eviction of the respondent under the provisions of the 1961 Act, who is admittedly in occupation of the premises. In the petition, the petitioner inter-alia averred that the premises had been leased to one S. K. Gandhi who was in occupation of the same for some time and the said S. K. Gandhi vacated the premises inducting the respondent as his sub-lessee without his knowledge and consent. He, has asserted that he objected to the same, but has been receiving the rents from the respondent. Para 3 of the petition containing those allegations that is material reads thus: - "one Mr. S. K. Gandhi approached the petitioner and wanted the premises to be leased to him on a monthly tenancy. The petitioner let out the same to the said Mr, S. K. Gandhi. The said S. K. Gandhi stayed in the premises for some time and was paying rents. He has left Bangalore premanently and his whereabouts are not known. He had inducted the respondent in the premises and the respondent started to pay the rents. The petitioner had not authorised Mr. S. K. Gandhi to sublease. The said S. K. Gandhi stayed in the premises for some time and was paying rents. He has left Bangalore premanently and his whereabouts are not known. He had inducted the respondent in the premises and the respondent started to pay the rents. The petitioner had not authorised Mr. S. K. Gandhi to sublease. When the petitioner brought this fact to the notice of the respondent and objected to his occupation of the premises, the respondent premised to stay only for a short period and vacate the same. However the respondent has continued to occupy the premises paying a monthly rent of Rs. 400/- The tenancy month is the calendar month ( 3 ) THE petitioner has sought for eviction of the respondent from the premises under the 1961 Act on three grounds viz. , (1) that he requires the premises for his bona-fide use and occupation - (vide Section 21 (1) (h) (2) that S. K. Gandhi had unlawfully sublet the premises to the respondent and the respondent as sub-lessee was liable to be evicted (vide S. 21 (1) (f) and (3) that the respondent has acquired and was in possession of a suitable building in the City of Bangalore (vide S. 2 (1) (p) The respondent resisted the application of the petitioner Among others, the respondent asserted that the application made by the petitioner for non-joinder of S. K. Gandhi was not maintainable. On the merits, the respondent urged that the application is made to secure higher rents and the petitioner was in occupation of several vacant houses and great hardship would be caused to him if he were to be evicted from the premises. ( 4 ) IN support of his case, the petitioner examined himself and closed his case, In his evidence the petitioner who is a retired Deputy commissioner, has stated that he let out the premises to S. K. Gandhi who has inducted the respondent as sub-leasee without his knowledge and consent. In his examination-in-chief, the petitioner has clearly and emphatically assepted that there was no privity of contract between him and the respondent. In his evidence, petitioner has spoken to his case on the grounds, urged in his petition In support of his case, the respondent examined himself and anotner witness one professor I. G. Sharma who is in occupation of another portion of the premises. In his evidence, petitioner has spoken to his case on the grounds, urged in his petition In support of his case, the respondent examined himself and anotner witness one professor I. G. Sharma who is in occupation of another portion of the premises. ( 5 ) AFTER the evidence was closed, the learned Civil Judge heard the arguments on 26-10-77. At tf e stage of arguments, the learned counsel for the respondent urged that having regard to the plea of the petititoner him self, the respondent was in occupation of the premises as sub lessee of S. K. Gandhi without his consent and contrary to law and on his own evidence, his application under the 1961 Act was not maintainable and should be rejected in limine,, though a specific plea in that behalf had not been taken in the objection statement filed by him. On this contention, the learned Civil judge was of the view that the same could not be examined in, the absent of a specific plea. But having held so, the learned Civil Judge also held that there was relationship of landlord and tenant between the parties on the ground that the respondent was paying rents and the same is being received by the petitioner (vide para 3 of the order ). ( 6 ) SHRI G. P. Shivaprakash, learned counsel for- the petitioner reiterated his preliminary contention as to the maintainability of the petition filed by the petitioner and urged that the petition was not maintainable and was liable to be rejected in limine. In support of his contention shri Shivaprakash relied on the rulings of the Supreme Court in Raizada topandas v. Gorakhram Gokalchand AIR 1964 SC. 1348 and in Noor Mohd. Khan Chouse khan Soudagar v. Farkirappa Bharmappa AIR 1978 SC. 1217 and the rulings of our High court in Venkataram v. P. S. Seshagiri Rao (1965) 1 Mys. L. J. 560 in M. Samarendra Naidu v. House Rent and Accommodation Controller (1967) 2 Mys. L. J. 190 in Salanki Hanmanth- rao v. H. Gurushanthamma (1973) 2 Mys. L. J. 147 and in Mohammed Qasim v. Mohammed mainuddin (1974) 1 Kar. L. J. 316. Shri N. P. Moganna, learned counsel for the respondent, refuted the contention of Shri Shivaprakash and supported the finding c the learned Civil Judge. L. J. 190 in Salanki Hanmanth- rao v. H. Gurushanthamma (1973) 2 Mys. L. J. 147 and in Mohammed Qasim v. Mohammed mainuddin (1974) 1 Kar. L. J. 316. Shri N. P. Moganna, learned counsel for the respondent, refuted the contention of Shri Shivaprakash and supported the finding c the learned Civil Judge. ( 7 ) ATTER hearing arguments on this contention on both sides, I felt that the question of jurisdiction raised by the respondent should be decided first as a preliminary issue and thereafter the case taken up for hearing on the other questions if the plea urged by the respondent were to be rejected. In this view, I have not heard the parties on the merits of the case. I now propose to record my finding on the preliminary issue raised by the respondent. ( 8 ) A Civil Judge functioning under the 1961 Act is a Court of limited jurisdiction and is not a Court of general or unlimited jurisdiction. A Civil judge as a Court of limited jurisdiction, can decide certain specified matters when there exists the relationship of landlord and tenant between the parties and not otherwise. If there is a dispute between the parties on the relationship of landlord and tenant, the Court can determine that question as a jurisdictional fact and exercise its jurisdiction, on matters faffing wit in the purview of the 1961 Act if it holds that there exists that relationship between the parties and not otherwise. Except for this, the jurisdiction of the Civil Judge to decide matters is limited and cannot be usurped by him much less the, parties confer on him a jurisdiction not conferred by the Act. By jurisdiction is meant the authorrity which a Court has to decide, matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Jurisdiction is classified into inherent want of jurisdiction and irregular exercise of jurisdiction. In the case of inherent want of jurisdiction, neither acquiescence nor expre,ss consent of parties can confer jurisdiction, on a Court that has no jurisdiction. A mere irregular exercise, of jurisdiction can be waived and a decree passed will not be a nullity. Jurisdiction is classified into inherent want of jurisdiction and irregular exercise of jurisdiction. In the case of inherent want of jurisdiction, neither acquiescence nor expre,ss consent of parties can confer jurisdiction, on a Court that has no jurisdiction. A mere irregular exercise, of jurisdiction can be waived and a decree passed will not be a nullity. A plea as to want of inherrent jurisdiction can be set up at any stage of the proceedings and therefore cannot be rejected on the, ground that the same has not been specifically urged, in the defence (vide I. L. R. 9 Allahabad 191 (PC) and a. I. R. 1951 S. C. 230 ). Another principle that is firmly settled by the ruling of the Supreme Court in Raizada, Topandas case (1) is that in deciding whether a Court, Forum or a Tribunal has jurisdiction over a subject matter or a case is that the plaint or the petition allegations should, be examined and not the pleas raised in the defence. Bearing these principleis in mind, one has to examine the preliminary issue that arises for determination in the case. ( 9 ) THE case of the petitioner is that some time in 1970, he leased the premises to one S. K. Gandhi who in turn has sub let the same to the respondent without his consent and authority. The lease and sub-lease of the premises has therefore occurred after the 1961 Act has come into force. In his evidence, the petitioner has deposed that there is no privity of contract between him and the respondent. From these, it is clear that there is no contract between the parties permitting sub-lease of the premises to the respondont by S. K. Gandhi, the original tenant. But the learned Civil Judge holds that the respondent is the tenant of the petitioner on the ground that he has been paying rents which are being received by the petitioner and therefore he would fall within the meaning of the term tenant occurring in s. 3 (r) of the 1981 Act. S. 23 in express and unambiguous terms prohibits a sub lease if there is no contract to the contrary between the parties. In the absence of a contract to the contrary, it is not open to, a tenant to sub-let the whole or any part of the premises let to him to another person. S. 23 in express and unambiguous terms prohibits a sub lease if there is no contract to the contrary between the parties. In the absence of a contract to the contrary, it is not open to, a tenant to sub-let the whole or any part of the premises let to him to another person. Except in the case of a contract to the contrary and the cases attracting the two, provisos of S. 3, sub-letting the whole or a portion of the premises by a tenant is a punishable offence under sub-section (2) of S. 23. Sub-lease in the case of the respondent, according to the petitioner, is not authorised by him and is illegal. In other words, his case is the sub-lease in favour of the respondent is in contravention of S. 23 of the Act. The view taken by the learned civil Judge that mere payment and receipt of rents would establish the relationship of landlord and tenant between the parties does not flow from the exhaustive definition of the term landlord and tenant occurring in S (h) and (r) of the 1961 Act. On the other hand, an analysis of S. 3 (h) and (r) would show that an unauthorised sub-tenant is specifically excluded in those provisions and in particular S. 3 (r) of the 1961 Act. It would be difficult to conceive that the Act having prohibited a subletting, would defeat the same by including an unauthorised sub-lessee as a tenant within the meaning of that term occurring in S. 3 (r) of the 1961 Act, In this view, the finding of the learned Civil Judge that the respondent is a tenant of the petitioner under the 1961 Act is contrary to the provisions of the Act and cannot be upheld. ( 10 ) ACCORDING to the petitioner, the respondent has been illegally inducted and is in occupation of the premises and he has no right to continue to occupy the premises. In ether words, the case of the petitioner is, that the respondent is not his tenant and his occupation and continuance of the premises are illegal. ( 10 ) ACCORDING to the petitioner, the respondent has been illegally inducted and is in occupation of the premises and he has no right to continue to occupy the premises. In ether words, the case of the petitioner is, that the respondent is not his tenant and his occupation and continuance of the premises are illegal. ( 11 ) ON his own showing the petitioner disclaimed the relationship of landlord and tenant between him and the respondent for which very reason, the Civil Judge functioning under the 1961 Act could not entertain his petition for eviction, adjudicate the same and grant a decree for eviction against the respondent. ( 12 ) SHRI Moganna contended that the premises was a new building and therefore S. 23 has no application. Proviso to sub-section (2) of S. 2 of the 1961 Act excludes the application of Part II Lease of buildings, and Part III provisions regarding rent only for a period of 5 years from the date of construction of a new building if it has been constructed after 1-8-57. S. 23 recurring in Part V of the 1961 Act is therefore not excluded even though the building is a new building constructed after 1-8-57. In this view, there is no merit in the contention of Shri Moganna that Section 23 has no application to the premises. ( 13 ) AS can be seen from the above, the objection raised by the respondent to the jurisdiction of the Civil Judge is one of inherent want of jurisdiction and the same should have therefore been allowed to be raised at the stage of arguments though not specifically raised in the objection statement and the Civil Judge was in error in not examining the same and deciding it. In this view, I. have independently examined the question and upheld the objection raised by the respondent without unnecessarily remitting the case to the Civil Judge for adjudication. In the result, I hold that the order of the learned Civil Judge is illegal and the petition filed by the petitioner for eviction against the respondent under the 1961 Act before him is not maintainable and is liable to be dismissed. In the result, I hold that the order of the learned Civil Judge is illegal and the petition filed by the petitioner for eviction against the respondent under the 1961 Act before him is not maintainable and is liable to be dismissed. ( 14 ) IN the view I have taken, the question of adjudicating the met of the claim made in the petition cannot be adjudicated by the Civil Judge or by this Court and therefore those findings are also liable to be vacated. I therefore vacate the findings of the learned Civil Judge on merits reserving liberty to both the parties to urge their respective contention in appropriate Courts. ( 15 ) CIVIL Revision Petition allowed. Petition. filed by the respondent for eviction, under the 1961 Act is, dismissed. ( 16 ) IN the circumstances of the case, I direct the parties to bear their own costs. --- *** --- .