GOURIKUTTY AMMA v. KESAVAN — 1988 DIGILAW 201 (KER)

Judgment :- 1. The question that arises for consideration in both these civil miscellaneous appeals is whether the civil court has got jurisdiction to entertain a suit for eviction of a tenant in the occupation of a building to which provisions of Act 2/65 are applicable. Divergent opinions are held by different High Courts and in view of the importance of the question, these two C.M. As have been referred to Division flench. 2. The facts in C.M.A. 79 of 1983 can be summarised as follows: The landlord is the appellant. He filed O.S. 440 of 1979 before the Munsiff Court, Alleppey for a declaration of the contract rate of rent, for arrears of rent and also for recovery of the building subject to S.11 of Act 2 of 1965. According to the appellant-plaintiff, the defendant took the building on a monthly rent of Rs. 60/-. Subsequently the plaintiff made certain additions to the building and the rent was enhanced to Rs. 100/-. The defendant contended that the suit was not maintainable and that the civil court had no jurisdiction to entertain the suit. He also disputed the rate of rent. The defendant denied that the rent was enhanced to Rs. 100/- frorn 15-6-1977. The trial court held that relief prayed for by the plaintiff cannot be granted by a civil court. The matter was taken up in appeal and the lower appellate court held that the suit was opposed to S.5 (2) of Act 2 of 1965 since the landlord wanted to enhance the original rate of contract rent. However lower appellate court was of the view that the Munsiff should have passed a decree subject to S.11 of the Rent Control Act, and therefore the suit was remanded to the trial court for the purpose of considering the question whether the plaintiff was entitled to get a decree for realisation of arrears of rent and eviction subject to S. H of the Rent Control Act. 3. In CMA.199 of 1983 the 3rd defendant is the appellant. There the plaintiff filed the suit for eviction alleging that two rooms were entrusted to the first defendant on 19-J-1970 on a monthly rent of Rs. 20/-. While these two rooms were in the occupation of the first defendant, he requested for the possession of a lean to attached to these rooms. That also was given possession to the first defendant. 20/-. While these two rooms were in the occupation of the first defendant, he requested for the possession of a lean to attached to these rooms. That also was given possession to the first defendant. According to the plaintiff that would fetch a monthly rent of Rs. 10/-. First defendant paid rent till 9-10-1978 and thereafter defaulted in paying the rent. The 2nd defendant was the caretaker of the first defendant. The plaintiff prayed for a declaration of his right over these two rooms and for eviction of the defendants and for arrears of rent. The first and second defendants contended that one of the rooms is in the occupation of the present appellant and therefore she was impleaded as additional 3rd defendant. The first defendant contended that he was not in possession of any shop room belonging to the plaintiff and that he is a Government employee. He denied the alleged leasehold arrangement. The second defendant also denied the leasehold arrangement between himself and plaintiff. According to him the plaint schedule rooms were taken by his mother from one Ambujakshan and she entrusted one room to second defendant and he had been conducting a grocery shop in the room and the other room is being occupied by the 3rd defendant and therein she has been conducting a trade in fertilizers. The third defendant-appellant contended that she had been in occupation of one room and a lean to and the same were given possession to her by one Ambujakshan. She subsequently learned that Ambujakshan had let out the rooms with the consent of the plaintiff. The trial court held that in view of S.11(1) of Act 2 of 1965 the civil court has no jurisdiction to entertain the suit. The trial court also held that the suit for arrears of rent could be filed only before the small cause court. The District Court. Quilon in A.S. 53 of 1982 reversed the finding of the Munsiff's Court. The lower appellate court held that the 3rd defendant was not claiming any tenancy right under the plaintiff. Therefore S.11(1) of Act 2 of 1965 has no application. It was held that the suit for arrears of rent has been filed along with prayer for eviction and therefore, the proper forum is not small causes court, but ordinary civil court having original jurisdiction. Therefore S.11(1) of Act 2 of 1965 has no application. It was held that the suit for arrears of rent has been filed along with prayer for eviction and therefore, the proper forum is not small causes court, but ordinary civil court having original jurisdiction. The lower appellate court remanded the case to the Munsiff's Court for fresh adjudication. 4. In both these cases the landlords have sought eviction of the persons who are in occupation of buildings. It is not disputed that Act 2 of 1965 is made applicable to the areas wherein these buildings are situated. 5. In Narayanan v. Ratnamma (1987 (2) KLT. 473) His Lordship Kochu Thommen J. held that a decree cannot be passed for eviction of a tenant after coming into force of the Act otherwise than as permitted under the Act. Repelling the contentions of the respondents' counsel that the decree is good in so far as it was made on grounds which were permissible at the time of the institution of the suit, although it was not executable after the coming into force of the Act, it was held: "The non obstante clause shows that what S.11 prohibits is not only the execution of final decree made on grounds not permitted under the Act, but also the passing of such a decree. A decree so made and not challenged in appeal is final, but it is not executable. On the other hand, such a decree, when challenged, is not only not executable, but is liable to be set aside as invalid". 6. Similar question came up for consideration in these two C. M. As. Considering the importance of question involved His Lordship Kochu Thommen J. referred the matter to Division Bench. 6A. The learned counsel for the appellant in C.M.A. 79 of 1983 has contended that it may not be fully correct to say that the decree passed by the civil court would become invalid as soon as the provisions of the Rent Control Act come into force. There are several decisions on this point, which hold the view that despite the provision contained in the Rent Control Act, the civil court has jurisdiction to pass a decree and the only prohibition is that the same cannot be executed except in accordance with the provisions of the Rent Control Act. There are several decisions on this point, which hold the view that despite the provision contained in the Rent Control Act, the civil court has jurisdiction to pass a decree and the only prohibition is that the same cannot be executed except in accordance with the provisions of the Rent Control Act. The earliest of the decisions on this point is Muhammadunny v. M. Unniri (AIR 1949 Madras 765). The Division Bench also considered the scope of S.9 of the C.P.C. and held that ouster of jurisdiction of the civil court should not be readily inferred and there must be express provision of the exclusion of jurisdiction. The Court held: "The eviction of a tenant can only be in accordance with provisions of Cl. S. There is nothing in this clause or in any of the other clauses of the Order expressly prohibiting the institution of a suit for possession or prohibiting a civil Court from passing a decree for possession. Mo doubt, even though a decree for possession is passed, it may not be capable of execution by the Civil Court. But the passing of the decree itself is not in terms prohibited. There is also nothing in this clause which takes away, by necessary intendment, the ordinary jurisdiction of a Civil Court to entertain a suit by a landlord for recovery of possession of his property in the occupation of a tenant. The exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly "implied". On the contrary there are certain considerations which support the view that the Order does not take away the decree therein for possession. The exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly "implied". On the contrary there are certain considerations which support the view that the Order does not take away the decree therein for possession. These are: (1) The cause of action for an application to the controller would be quite different from the cause of action for a suit in the Civil Court (2) The grounds on which the controller can order an eviction may be quite different from those on the strength of which the Civil Court would grant a decree; (3) The failure by the plaintiff to claim a decree for eviction in the Civil Court on grounds which would not justify eviction by the controller might result in grave complications by way of limitation for a suit filed after the control order ceases to operate; (4) The period during which the execution of a decree is prohibited is limited. The Order itself is only for a short duration; and when it is repealed or it expires, decree of a civil Court can be executed in the ordinary way immediately thereafter. A decree for eviction which cannot be executed for a certain time, in this case during the continuance of the Rent Control Order, cannot be called 'Brutum fulmen' or that passing a decree for eviction which cannot be at once executed, would not be indulging in a mere pastime;" 7. In Korah Punnen v. Parameswara Kurup Vasudeva Kurup (1955 KLT. 924) a question of this nature incidentally arose. That was a case in which the landlord wanted to get eviction of the tenant from the building in pursuance of a compromise decree. Under Clause.6 (1) of the Buildings (Lease and Rent) Control Order (1950 T. C.) a tenant in possession of a building shall not be evicted therefrom whether in execution of a decree or otherwise and whether before or after termination of the tenancy except in accordance I with the provisions of this clause. While interpreting this clause the Full Bench held: "Notwithstanding anything contained in the Rent Control Order the court can pass a decree for eviction, and the question whether the tenant is entitled to the benefit under the Order will arise only when be is sought to be evicted in pursuance to the decree. While interpreting this clause the Full Bench held: "Notwithstanding anything contained in the Rent Control Order the court can pass a decree for eviction, and the question whether the tenant is entitled to the benefit under the Order will arise only when be is sought to be evicted in pursuance to the decree. Clause.6 (1) of the Order of 1122 and Clause.9 (I) of the 0.1950 would apply to a case in which there is a decree for eviction. The clauses provide that notwithstanding such a decree the tenant will not be liable to be evicted except in certain specified cases. That the Rent Control Order does not affect the jurisdiction of the civil court to pass a decree for eviction of a tenant has been held by this Court in Bharat Insurance Company Ltd, v. Bivathu (ILR. 1953 T. C.)" 8. Reference was also made to three earlier decisions of the Cochin High Court. Dictum laid down in Korah Punnen v. Parameswara Kurup (1955 KLT. 924) was followed by His Lordship P. T. Raman Nair J. as he then was in Kajaria Co. Ltd. v. Vimala Bai (1967 KLT. 575). His Lordship held: "S. 11(1) of the Act does not oust the jurisdiction of a civil court to pass a decree for eviction. All that the sub-section says is that, notwithstanding such a decree, actual eviction can be effected only in accordance with the provisions of the Act. Certainly that does not mean that such a decree cannot be made. Nor would that be the necessary implication of the second proviso to the sub-section which says that in certain circumstances a civil court may pass a decree for eviction on the grounds mentioned in the section. That provides for a civil court effecting eviction in accordance with the provisions of the Act and the decree contemplated thereunder is a decree under the provisions of the Act to which the prohibition against eviction in execution in sub-section (I) does not apply. That does not mean that a civil court may not make an ordinary decree for eviction, which, not being made under the provisions of the Act, would attract the prohibition in sub-section (1)". That does not mean that a civil court may not make an ordinary decree for eviction, which, not being made under the provisions of the Act, would attract the prohibition in sub-section (1)". In Ramankutty v. Mary (1978 KLT 880) a single Bench of this Court held that S.11 of the Buildings (Lease and Rent Control) Act,1965 only prohibits the tenants being evicted from the building except in accordance with the provisions of the Act. The Court was of the view that in S.11 (2) there is no such statutory prohibition against passing a decree for eviction. 9. A divergent view has been taken by a Division Bench of Andhra High Court in Kerala Transport Co. v. Atul Kumar Agarwal (AIR 1986 A.P. 306) S.10 (1) of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 is to the effect that the tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of S.12 and 13 of the Act. In Para.37 to 41 of the judgment this question has been discussed. Justice Jagannadha Rao, speaking for the Bench, was of the view that mere passing of a decree which is absolutely inexecutable would be waste of time and cannot serve any purpose. This decision does not lay down the proposition that the suit is barred under such circumstances. The Court was of the view that the decree passed for eviction would be in a state of eclipse for certain time and it may again become operative when the exemption, if any, is brought into force. The Court was of the opinion that the decree for eviction would survive and there would be no need for the landlord to file a fresh suit in case a law is made by the legislature permitting such eviction on the basis of the right accrued to the landlord on the date of the suit. 10. In S. B. K. Oil Mills v. Subhas Chandra (AIR. 1961 SC. 1596) while considering an appeal under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1946 Supreme Court held that no suit shall be filed, after coming into force of the Act and the Act had no retrospective effect. 10. In S. B. K. Oil Mills v. Subhas Chandra (AIR. 1961 SC. 1596) while considering an appeal under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1946 Supreme Court held that no suit shall be filed, after coming into force of the Act and the Act had no retrospective effect. This decision is not helpful since under S.12 (1) of the aforesaid Act it is specifically stated that "no suit shall be instituted by the landlord to recover possession". We do not find any such clear prohibition under S.11 (1) of Act 2 of 1965. Another decision relied on by the learned counsel for the respondent is in K. Balakrishna Rao v. Haji Abdulla Sait (1980 T SCC 321) In this case question arose under Tamil Nadu Building (Lease and Rent. Control) Amendment Act. 1964. Relying upon the language of S.10 (1) of the principal Act which provided that a tenant was not liable to be evicted whether in execution of a decree or otherwise except in accordance with the provisions of that section or S.14 to 16 and the decision of the Madras High Court in Muhammadunny v. Unniri (AIR 1949 Mad. 765) and the decision of the Supreme Court in Patankar v. Sastry (AIR 1961 SC. 272) the Division Bench held that it was settled law that the principal Act itself did not prohibit the filing of a suit by a landlord for recovery of possession of the property from a tenant but only a decree passed in the said suit could not be executed except in accordance with the provisions of the principal Act and if that was the true legal position in respect of the buildings to which the principal Act applied from its commencement, there was no justification whatever for the legislature making a contrary provision in respect of non-residential buildings to which the principal Act became applicable by virtue of the Amending Act. The Division Bench, therefore, held that S.3 of the Amending Act was not applicable to the case on band. The Division Bench, therefore, held that S.3 of the Amending Act was not applicable to the case on band. His Lordship Venkataramaiah J. speaking for the Supreme Court expressed the view that the conclusion of the Division Bench of Madras High Court was erroneous as it was not for the Court to ask whether there was any justification for the legislature to make a provision in respect of the suits of the present nature, especially when the plaintiff bad no contention that S.3 of the Amending Act was unconstitutional, and the High Court had no option but to apply the provision in question to the case on hand without going into the question whether there was any justification in enacting it. It is pertinent to note that the Supreme Court had not expressed any opinion regarding the decision reported in Muhammadunny's case (AIR. 1949 Mad. 765). 11. From the various decisions of this Court noted above, it is clear that this Court has consistently taken the view that S.11(1) of Act 2/65 only prohibits the execution of the decree and it does not affect the jurisdiction of civil court to pass a decree for eviction. S.11(1) of Act 2 is to the following effect: "Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. 12. From S.11(1) of Act 2 of 1965 it is clear that it only prohibits the eviction of the tenant except in accordance with the provisions of the Act. We hold that S.11(1) of the Act does not oust the jurisdiction of the civil court to pass a decree for eviction. The only prohibition is that such a decree could be executed only in accordance with the provisions of the Act. Even now the provisions of Act 2/65 are not made applicable to the entire State. If the Act itself is repealed the decree of the civil court can be executed. Therefore it may not be correct to say that as soon as the Act 2/65 is made applicable to the building, the earlier decree for eviction obtained by the landlord would become invalid. 13. In C.M.A. 199 of 1983 the appellant has not raised any plea of bar under S.11 of the Act. Therefore it may not be correct to say that as soon as the Act 2/65 is made applicable to the building, the earlier decree for eviction obtained by the landlord would become invalid. 13. In C.M.A. 199 of 1983 the appellant has not raised any plea of bar under S.11 of the Act. Therefore the lower appellate court was of the view that the civil court has jurisdiction to try the case and hence the matter remanded to the court below for fresh adjudication in accordance with law. We see no reason to interfere with this finding. C.M.A No. 199 or 1983 is dismissed. 14. In C.M.A 79 of 1983 the suit was for declaration of the rent and for eviction of the tenant for non-payment of rent. The plaintiff contended that the rent was originally Rs. 60/- and the same was later enhanced to Rs. 100/-. The lower appellate court has now held that the plaintiff is not entitled to the declaration prayed for since the prayer if allowed would run contrary to the provisions of S.5(2) of the Rent Control Act. The finding of the learned Subordinate Judge is not correct. The plaintiff seeks for a declaration that the contract rent is Rs. 100/-. If the contract rent is excessive it is for the tenant to move the appropriate forum for fixation of fair rent. The prayer of the plaintiff is not to enhance the original rent of Rs.60/-to Rs. 100; the case of the plaintiff is that there was subsequent contract by which a tenant agreed to pay Rs. 100/-. Of course the enhancement of the rent is disputed by the tenant. The civil court has jurisdiction to try a suit this nature. Therefore, the judgment and decree of the lower appellate court are set aside and the suit is remanded to the trial court to consider whether the plaintiff is entitled to the reliefs prayed for in this suit. The C.M.As. are disposed of as above. The parties in the two C.M.As. will appear before the respective trial courts on the reopening date after summer recess.