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2000 DIGILAW 819 (KAR)

ALL INDIA HANDLOOM FABRIC MARKETING CO OPERATIVE SOCIETYLIMITED v. CANARA BANK

2000-12-08

B.N.MALLIKARJUNA

body2000
B. N. MALLIKARJUNA, J. ( 1 ) IN this application under Section 114 read with order 47, Rule 1 of the CPC petitioner has sought for review of my order dated 13-3-2000 in crp No. 960 of 1999 arising out of the order dated 20-2-1999 of the i additional city civil judge, Bangalore in m. a. No. 77 of 1998. ( 2 ) BRIEFLY stated the facts are: respondent 1 is the owner of the premises in dispute situated in the city of Bangalore and that premises was leased to the petitioner at the first instance for a period of 10 years from 1-8-1963. Possession of the property in 'a' schedule was handed over on 1-8-1963 and 'b' schedule on 1-2-1966. It would appear that in' the year 1997 mezzanine floor was also given possession of by the landlord. On 30-8-1988 respondent 1-canara bank issued a notice to the petitioner terminating the tenancy and requesting him to handover vacant possession of the premises on or before 30-9-1988. This notice was replied by letter dated 27-9-1988. Thereafter, it is stated there were certain talks and exchange of letters between the parties and respondent 1 agreed for the continuance of the lease subject to the appellant paying enhanced rent from 1-1-1994. The original rent was Rs. 6,840-00 and the enhancement sought under letter dated 13-9-1996 was Rs. 72,350-00 from 1-1-1994. There was no agreement in between the parties, but however petitioner continued in possession of the suit premises. On 28-2-1997 another notice was issued asking the petitioner to vacate and handover vacant possession and this notice was replied on 9-3-1997. Since the petitioner did not vacate, the matter was referred to the estate officer, respondent 2 under the Provisions of the public premises (eviction of unauthorised occupants) Act, 1971. Estate officer after issuing notice under Section 7 and another under Section 4 continued the proceedings, examined the witnesses and after hearing the parties and considering the evidence, both oral and documentary, by order dated 29-10-1998 directed the petitioner to vacate and handover vacant possession of the premises on or before 31-12-1998. Estate officer further directed the petitioner to pay the arrears of rent calculated as indicated in the order in one lump sum on or before 30-11-1998. Estate officer further directed the petitioner to pay the arrears of rent calculated as indicated in the order in one lump sum on or before 30-11-1998. ( 3 ) AGGRIEVED by the said order of eviction, petitioner approached the city civil judge, Bangalore city in m. a. No. 77 of 1998, unsuccessfully. Learned judge, while confirming the order of eviction set aside the direction to pay the arrears of rent. ( 4 ) THIS order was challenged before this court by the petitioner in crp No. 960 of 1999. After hearing the parties and by order dated 13-3-2000, revision was dismissed, however petitioner was granted six months time to vacate and handover vacant possession on or before 30-9-2000. Aggrieved by the said Order, petitioner approached the supreme court in slp (civil) No. 10308 of 2000. However, at the hearing, learned counsel for the petitioner sought leave of the court to withdraw the petition to pursue such other remedies as may be permissible in law and accordingly on 28-7-2000 slp was dismissed as withdrawn. It is thereafter, present petition is filed. ( 5 ) THIS petition is filed principally on two grounds. One of the grounds urged is that the petitioner was not aware of certain shocking facts and circumstances and they were discovered subsequent to the delivery of judgment by this court and if only those facts were available and had placed before the court, the court would have been pursuaded to grant the petitioner 3 to 4 years time to vacate and handover vacant possession of the premises. Secondly, it is contended that in view of Section 101 of the multi-state Co-Operative Societies Act, 1984, proceedings for eviction before the estate officer was not maintainable. There should have been a notice before the institution of the suit as required under Section 101 of the act 1984 and there being no such statutory notice, the proceedings are vitiated. This question of law was not raised and pleaded before the court at the time of hearing and could only realise after the decision of the apex court in patel roadways limited v birla yamaha limited. It is on these grounds petitioner has sought for review of the order dated 13-3-2000. This question of law was not raised and pleaded before the court at the time of hearing and could only realise after the decision of the apex court in patel roadways limited v birla yamaha limited. It is on these grounds petitioner has sought for review of the order dated 13-3-2000. ( 6 ) ON a careful scrutiny of the papers and the relevant Provisions of various acts relied on, i do not find substantial merit in the contention that Section 101 of act 1984 are attracted to the proceedings before the estate officer and therefore there being no compliance of the mandatory Provisions, whole proceedings are vitiated. In fact, it is further contended that certain facts and circumstances were discovered subsequent to the judgment and if only those were placed before the court, the court would have been pursuaded to grant him sufficiently longer period viz. , 3 to 4 years to vacate and handover vacant possession. Even in this regard i find no substance for the reason that those facts were considered at the time of disposal of revision petition as I could read from para 9 of the order and only thereafter six months time was granted. ( 7 ) BEFORE adverting to the merits of the first contention, it would be appropriate to refer to Section 9 of the CPC which reads thus:"section 9. Courts to try all civil suits unless barred. The courts shall (subject to the Provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred". A plain reading of Section 9 makes it clear that civil courts will have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. ( 8 ) SRI balakrishnan, learned counsel inviting my attention to the decision of the Supreme Court in patel roadways limited's case, supra, contended that proceedings before an estate officer would be construed as a suit and therefore compliance of Section 101 of act 1984 was mandatory. The apex court had the occasion to consider what proceedings would come under the term suit. They were considering the scope, object and purport of certain Provisions of the consumers act. The apex court had the occasion to consider what proceedings would come under the term suit. They were considering the scope, object and purport of certain Provisions of the consumers act. Considering the dictionary meaning, the definition of the expression "suit" in sections 51 to 55 of the act ix of 1879, apex court held that proceedings before the consumers forum would constitute and came within the sweep of the term "suit". However, it would be appropriate to refer to certain observations made in patel roadways limited's case, supra, which reads thus:"49. From the above it is clear that the term 'suit' is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The meaning of the term "suit" also depends on the context of its user which in turn amongst other things, depends on the act or the Rule in which it is used. No doubt the proceeding before a national commission is ordinarily a summary proceeding and in an appropriate case where the commission feels that the issues raised by the parties are too contentious to be decided in a summary proceeding it may refer the parties to a civil court. That does not mean that the proceeding before the commission is to be decided ignoring the express statutory Provisions of the carriers act (section 9) in a proceeding in which a claim is made against a common carrier as defined in the said act. Accepting such a contention would defeat. The object and purpose for which the consumer protection act was enacted. A proceeding before the national commission, in our considered view, comes within the term "suit". Accordingly, we reject the contention raised by Shri ashok desai in this regard". (emphasis supplied) apex court while interpreting has held that the meaning of the term suit also depends on the context of its user which in turn amongst other things, depends on the act or the rules in which it is used. ( 9 ) HERE is a case where undisputably both the petitioner and respondent 1 are public undertakings and petitioner is an institution established and functioning under the Provisions of the act 1984. ( 9 ) HERE is a case where undisputably both the petitioner and respondent 1 are public undertakings and petitioner is an institution established and functioning under the Provisions of the act 1984. Section 101 prohibits institution of a suit against a multi-state co-operative society or any of its officer until the expiration of 90 days next after notice in writing has been delivered to the central registrar or left at his office, etc. Etc. Section 101 reads thus:"section 101. Notice necessary in suits. No suit shall be instituted against a multi-state co-operative society or any of its officers in respect of any act touching the constitution, management or the business of the society until the expiration of ninety days next after notice in writing has been delivered to the central registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left". assuming that the proceedings under the Public Premises Act are construed as suits, the question would be whether in the case on hand notice under Section 101 was necessary before the initiation of proceedings before the estate officer. Undisputably, petitioner is in occupation of the premises from 1963, innumerable letters have been exchanged between the parties either for enhancement of rent or for vacating the premises in between the year 1963 till about the year 1993 or 1994. It is only after issuing two notices, proceedings before the estate officer are instituted. In this context, it is necessary to refer to Section 15 of the Public Premises Act which reads thus:"section 15. Bar of jurisdiction no court shall have jurisdiction to entertain any suit or proceeding in respect of (a) the eviction of any person who is in unauthorised occupation of any public premises, or (b) to (e) not necessary for the purpose of this case". a plain reading of Section 15 makes it clear that no court shall have jurisdiction to entertain any suit or proceeding concerning eviction of any person who is in unauthorised possession of any public premises. Now turning to Section 9, we read that civil courts will have jurisdiction to entertain suits of a civil nature except suits of which their cognizance either expressly or impliedly barred. Now turning to Section 9, we read that civil courts will have jurisdiction to entertain suits of a civil nature except suits of which their cognizance either expressly or impliedly barred. So reading Section 9 of the Civil Procedure Code and Section 15 of the Public Premises Act, one could without fear of contradiction say that in the matter of eviction of a person in unauthorised occupation, no civil court will have jurisdiction to entertain a suit or proceeding and it should be only before the estate officer. The special act provides for procedure to be followed in such matters. Therefore, question of issuing a notice as contemplated under Section 101 does not arise. What the apex court in the case of patel roadways limited, supra, has held is that the definition or meaning of the term "suit" also depends on the context of its user which in turn amongst other things depends on the act or the Rule in which it is used. In the instant case, Section 15 of the Public Premises Act bars the jurisdiction of the civil court not only in respect of a suit but also in the matter of proceedings concerning eviction of a person who is in unauthorised occupation of a public premises. Similar provision is not there in consumer protection Act, 1986. ( 10 ) IN the instant case, undisputably, the premises is a public premises belonging to a public undertaking and the person is in unauthorized occupation, petitioner continues to be in occupation even after the expiry of the lease period and that as I have said in the original order amounts to unauthorised occupation. Therefore, in the circumstances, i find no substance in the arguments that the proceedings before the estate officer was not maintainable for the reason that there was no compliance of Section 101 of the act 1984. ( 11 ) COMING to the second point, Sri balakrishnan, learned senior counsel submitted that if the eviction order is implemented, many of the employees would be thrown out, stock in trade in possession of the petitioner would become useless and greater loss would be sustained by a co-operative institution and that could be avoided by granting sufficiently longer tune. ( 11 ) COMING to the second point, Sri balakrishnan, learned senior counsel submitted that if the eviction order is implemented, many of the employees would be thrown out, stock in trade in possession of the petitioner would become useless and greater loss would be sustained by a co-operative institution and that could be avoided by granting sufficiently longer tune. Sri ramanand, learned counsel, per contra contended that petitioner-society has two other showrooms in the city of Bangalore and in the event of eviction it would not be difficult for them to shift these goods to anyone of those two showrooms and he further submitted that in fact the litigation is going on over years and the petitioner is in continuous occupation of the premises from 1963, bank viz. , respondent 1 is also having its head office in the same building and in view of expansion and increase in the staff, bank is finding it difficult to accommodate and therefore it is necessary that the petitioner has to be evicted. It is not a luxurious litigation, it is out of necessity eviction is sought in the case and therefore there is no justifiable grounds for granting any time in the matter. He also submitted that there are no substantial grounds for review, no error apparent on the case of the record and as such review is also not permissible. In support of his submission he invited my attention to the decision of the Supreme Court in Smt. Meera bhanja v Smt. Nirala kumari choudhury. Lastly, he submitted that there is delay in filing the application for review and there are no substantial grounds to condone the delay, the courts have no power to extend the period of limitation on equitable grounds. In support of his arguments he invited my attention to the decision of the apex court in p. k. ramachandran v state of Kerala and others. I do not find any need to go into these questions elaborately in view of my finding on the other point that the proceedings before the estate officer are not vitiated for the reason that there was no notice under Section 101 of the act 1984. However, one thing I may note that having considered the hardship that would be caused to the petitioner, six months time was granted i. e. , on 13-3-2000. However, one thing I may note that having considered the hardship that would be caused to the petitioner, six months time was granted i. e. , on 13-3-2000. According to the Order, petitioner had to vacate the premises on or before 30-9-2000. In the circumstances and in view of the long drawn litigation, I am of the considered view that grant of another three months time would be just and appropriate. ( 12 ) IN the result, while dismissing the review petition, petitioner is granted time to vacate and handover vacant possession on or before 31-3-2001. --- *** --- .