Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 255 (KAR)

H. Mohanlal v. B. N. Venkata Subba Rao

2008-05-30

K.RAMANNA

body2008
JUDGMENT This appeal has been filed by the appellant-defendant challenging the judgment and decree dated 15-11-2001 passed by the XIV Addl. City Civil judge, Bangalore in O.S.No.2798/1998. 2. The facts of the case in brief is: the respondents-plaintiff claims that he is the owner of non-residential premises i.e., shop cum godown situated in property bearing No.15 & 16, Now No. 52/2, Sunkalpet Main Road, Bangalore, that the said premises was leased to late M. Harakchand, father of the appellant-defendant on a rent of Rs. 610/- per month and the tenancy was a monthly tenancy according to English calendar commencing from 1st day of every month. As the plaintiff requires the suit schedule premises for his own use and occupation, he filed eviction petition in HRC No. 2066/1996 before the Small Causes Judge, Bangalore which came to be dismissed as not maintainable by order dated 28-11-1997 in view of the judgment of the Apex Court regarding validity of Section 31 of the Karnataka Rent Control Act. Thereafter, the plaintiff issued a legal notice dated 5-1-1998 to the defendant terminating the tenancy with effect from 28-2-1998 and called upon him to deliver vacant possession of the suit schedule premises and pay damages. The defendant caused an untenable reply and did not vacate the premises. Therefore, the plaintiff filed the present suit in O.S.No. 2798/1998. During the pendency of the suit, the plaintiff died and his L.Rs were brought on record. 3. The defendant has filed his written statement denying the averments of the plaint. He contended that he is a tenant and he along with his brothers, is carrying on business in the suit schedule premises. His brothers and himself executed lease deed in favour of the plaintiff after the death of their father M Harakchand. It is contended that the plaintiff does not require the suit premises as averred in the plaint but the suit is filed with an intention to gain higher rent. It is also contended that termination of the tenancy is not in accordance with law and the plaintiff had no cause of action to file the suit. 4. It is contended that the plaintiff does not require the suit premises as averred in the plaint but the suit is filed with an intention to gain higher rent. It is also contended that termination of the tenancy is not in accordance with law and the plaintiff had no cause of action to file the suit. 4. The trial Court, after considering the pleadings, evidence adduced by the respondent and the material placed on record, held that termination of tenancy was legally valid and allowed the suit vide judgment and decree dated 15-11-2001 and directed the defendant to vacate and deliver vacant possession of the schedule premises to the plaintiff/respondent within three months from the date of the said order. Being aggrieved, defendant has filed this appeal. 5. Heard the learned Counsel for both the parties and perused the records. 6. The learned Counsel for the appellant-defendant contended that the trial Court failed to appreciate the oral and documentary evidence produced. The learned Judge erred in not considering Ex.D-1 - an advance receipt issued on 24-11-1965 for Rs. 300/- by the original landlord which clearly shows that premises was leased on 24-11-1965 and the tenancy month could not be the English calendar monts as pleaded by the plaintiffs. Even though P.W.1 admitted in his evidence that lease agreement was executed between his father and the defendant’s father, he has failed to produce the same before the Court and therefore the trial Court ought to have drawn an adverse inference against the plaintiff under Section 114 of the Evidence Act for non-production of the lease agreement. Further the contention of the appellant before this Court is that the trial Court had no jurisdiction to try the suit as the suit was one for eviction and the monthly rent was Rs. 610/- only i.e., Rs. 7320/- per year and as such only Court of Small Causes had jurisdicrion to try the suit under Section 8 of Karnataka Small Causes Court Act, further under Section 9 of the said Act no other Court had jurisdiction to try the suit except the Small Causes Court. 7. In support of his contentions the learned Counsel for the appellant has relied on a decision in the case of B. KRISHNAPPA Vs.. SMT. 7. In support of his contentions the learned Counsel for the appellant has relied on a decision in the case of B. KRISHNAPPA Vs.. SMT. CHANDRIKA G. (2007 (1) AIR KAR R.150) wherein it is held thus : “Keeping in mind these provisions it is noticed that in the instant case the plaintiff has come up with specific plea that he has withdrawn the permission granted to the defendant to be in occupation of the schedule premises / or that he has revoked the licence. In such a suit no issue arises for determination either relating to title or interest of the plaintiff or defendant in respect of the immovable property in question. Thus the suit is the suit simpliciter for ejectment of the occupant on revocation of licence and therefore the Small Cause Court has the jurisdiction to grant relief sought for.” Further he also relied on another decision in RAMESH P. SETH Vs.. M.S KRISHNA MURTHY & ANOTHER (ILR 2002 KAR 565) wherein it is held thus : “Tenant occupying Non-Residential premises the rent of which exceeds Rs. 500/- continues to be a Tenant even after the determination of lease and is liable to pay agreed rent. His possession does not become unlawful even after the determination of lease and hence such tenant paying damages for use and occupation of the premises does not arise. So all other rights and obligations and liabilities continue to operate under the Rent control Act. Landlord can maintain a suit for ejectments and Rent in the Court of Small Causes, as the question of tenant paying damages does not arise.” 8. On the other hand the learned Counsel for the respondent contended that the suit of the plaintiff / respondent is for possession and for damages and a suit for possession with damages in case of a lease or licence is outside the scope and jurisdiction of the Small Causes Court and the same is within the jurisdiction of Civil Court. It is further contended that there is valid termination of tenancy, the appellant was served with quit notice more than 15 days in advance of the effective date of termination of tenancy, that the appellant has not entered the witness box and has not adduced evidence and the Court below has rightly passed the order under challenge which requires no interference. Hence he prayed for dismissal of this appeal. Hence he prayed for dismissal of this appeal. In support of his case he relied on the decision in KHANDELWAL BROTHERS COMPANY LIMITED, BANGALORE Vs.. G.S. NISAR AHMED (2004 (5) KAR. L.J. 120) wherein it is held thus: “ KARNATAKA SMALL CAUSE COURTS ACT, 1964 - SECTION 8 & ARTICLES (4) & (10) OF SCHEDULE - Transfer of Property Act, 1882, Sections 106 and 111(h) - Court of Small Causes - jurisdiction of - suit for recovery of possession of premises under lease and for mesne profits on determination of lease by issue of notice - Such suit, held, is outside jurisdiction of Court of Small Causes which can entertain only suits for ejectment.” “The suit premises is a commercial premises and the area of the premises is more than 14 sq. mtrs. Therefore the Karnataka Rent Act of 1999 would not be applicable to the premises in question. So much so the definition ‘tenant’ under the Karnataka Rent Act also would not be applicable to the premises in question. The position was different under the Karnataka Rent Control Act of 1961. The provisions of the Karnataka Rent Act, 1999 are made applicable to the pending cases and with effect from the date of the Karnataka Rent Act of 1999 coming into force, the Karnataka Rent Control Act of 1961 is repealed. In that view of the matter, the legal fiction of a statutory tenant cannot be invoked in respect of a tenant not covered by the Karnataka Rent Act, 1999 and such tenants would be governed only by the provisions of Sections 106 and 111 of the Transfer of property Act” Further he also relied on another decision in BANGALORE PRINTING & PUBLISHING CO. LTD. Vs. SOUKAR T. PREMNATH (ILR 2004 KAR 96) wherein it is held thus : “Jurisdiction of ‘Small Causes Courts’ and ‘Civil Courts’ -’Suit for possession’ and suit for ejictment’ filed -ejectment and possession suits-which Courts have jurisdiction to try. HELD - In suits for possession Small Causes Court jurisdiction is excluded and in suits for ejectment the Small Causes Courts jurisdiction is included.” 9. Heard the arguments of the learned Counsel for both the parties and perused the records, the points that arise for my consideration are : a) Whether the trial Court had jurisdiction to try the dispute between the parties? Heard the arguments of the learned Counsel for both the parties and perused the records, the points that arise for my consideration are : a) Whether the trial Court had jurisdiction to try the dispute between the parties? and b) Whether the order under challenge passed by the trial Court is illegal, incorrect, perverse and capricious? 10. Admittedly the respondent/plaintiff is the owner of the suit schedule premises which is a non-residential in nature i.e., shop cum godown bearing No. 15 & 16, New No. 52/2 situated at Sunkalpet Main Road, Bangalore and that the father of the respondents i.e., the original plaintiff before the trial Court leased the said premises in favour of the appellant’s father about 35 years prior to filing in the suit on a rental of Rs. 65/- and had received advance of Rs. 300/- that the rent has been enhanced and the appellant is now paying the rent of Rs. 610/- per month; that according to the respondents the tenancy is commencing from the 1st day of every month as per English calendar. The appellant does not dispute his status as a tenant under the respondents but according to the appellants the tenancy is not commencing from 1st of every month; that after the death of their father he along with his brothers had executed lease deed in favour of the father of the respondents and that he along with his brothers are carrying on business in the suit schedule premises. However to prove his contentions the appellant has not entered the witness box nor led any evidence, except making bare denial in his written statement he has not adduced any evidence to corroborate his contentions, he failed to prove before the trial Court the execution of lease deed in favour of the father of the respondent by himself and his brothers after the death of his father. Further the appellant who had also taken a contention before the trial Court that the tenancy was not from 1st of every month according to the English calendar has not specifically pleaded before the trial Court as to what according to him is the date of commencement of tenancy. Further the appellant who had also taken a contention before the trial Court that the tenancy was not from 1st of every month according to the English calendar has not specifically pleaded before the trial Court as to what according to him is the date of commencement of tenancy. Of course, he has relied on Ex.D.1/rental advance receipt dated 24th November 1965 and contended that the premises was leased on 24-11-1965 and not from 1st of every month, but the said Ex .D.1 is only a rental advance receipt and it does not disclose what actually the tenancy month is, on the other hand the the oral evidence of the respondent stand undisturbed by the appellant, in the course of cros-examination of PW.1 the appellant has not put any question to the witness stating that the tenancy month was not from 1st every month as per English calendar, nothing was elicited from the mouth of the said witness to prove that the tenancy was not from 1st of every month. The Ex.D1/rent advance receipt is not a proof to hold that the tenancy is from 24th of every month. Usually the date of acknowledgement or receipt of advance amount and the actual date of commencement of tenancy would be different. In the normal course, prior to inception of tenancy, the tenant used to pay advance to the landlord, as such, it cannot be held that the date of receipt of advance amount would be the date of commencement of tenancy. Thus this Court is not inspired by the contention of the learned Counsel for the appellant that the tenancy is from the date of said receipt of advance amount. Thus the finding of the Court below in this regard is legal and proper and does not call for any interference. 11. Of course, the main grievance of the appellant before this Court is that the trial Court has not given him sufficient opportunity to adduce his evidence and put forth his arguments and that the trial Court had no jurisdiction to try the suit and only the Court of Small Causes has jurisdiction to try the suit. 11. Of course, the main grievance of the appellant before this Court is that the trial Court has not given him sufficient opportunity to adduce his evidence and put forth his arguments and that the trial Court had no jurisdiction to try the suit and only the Court of Small Causes has jurisdiction to try the suit. In this regard the order sheet maintained by the trial Court discloses that the appellant has availed sufficient opportunity to lead his evidence and inspite of the same he failed to lead his side of evidence, as such he cannot contend before this Court that he was deprived of sufficient opportunity to defend the suit. 12. However as regard the contention of the appellant with regard to the jurisdiction of the trial Court is concerned, before going to decide the same it is necessary to see what the Sections 8 and 9 of the Karnataka Small Cause Courts Act, 1964 says; “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 exceptions specified in the Schedule and to the provisions of any law for the time bing in force, all suits of a civil nature of which the value does not exceed (twenty five thousand) rupees shall be cognizable by a Court of Small Causes: Provided that the State Government in consultation with the High Court, may by notification, direct that all suits of which the value does not exceed (three thousand) rupees shall be cognizable by a Court of Small Causes mentioned in the notification. 9. 9. Exclusive Jurisdiction of Courts 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.” Further, Article (4) in the Schedule to the Karnataka small Cause Courts Act, 1964 provides that : (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.” 13. From the above it is clear that, a suit for possession of immovable property or for the recovery of an interest in such properties outside the jurisdiction of the Small Cause Courts. However the Small Cause Courts have jurisdiction in respect of a suit for ejectment, where the property has been let under a lease or licence which is oral or written and where the annual rental value of the property is within the pecuniary jurisdictional limits of Small Causes Courts. Further from proviso (c) to Schedule item No.4 of the above said Act is clear that where the substantial question involved in a suit is only with regard to legality or otherwise of the termination of tenancy or withdrawal of licence, it is only the Small Cause Courts which have jurisdiction and in view of Section 9 of the Act, except the Small Causes Court, no other Court has jurisdiction to try the same. 14. However a suit for possession with mesne profits or damages in the case of a lease or licence, would be outside the scope and jurisdiction of the Small Cause Court. 14. However a suit for possession with mesne profits or damages in the case of a lease or licence, would be outside the scope and jurisdiction of the Small Cause Court. The Small Cause Court under the provision of the Act can only deal with the cases of money claims relating to unsecured loans within the pecuniary jurisdiction limits cognizable by the Small Courts and suit for ejectment as envisaged under Article (4) of the Schedule to the said Act, but all other suits of civil nature are virtually outside the scope and jurisdiction of the Small Cause Court. Thus, where in a suit for recovery of possession and for damages based on lease or licence and where the provisions of Karnataka Rent Act, 1999 are made applicable to a premises and where the claim arising in the said suit is within the pecuniary jurisdiction of the Small Causes Courts, it is only the Small Cause Courts which have jurisdiction to deal with the matter and no other Court except the Small Causes Courts have jurisdiction to try the same. However, in a suit for recovery of possession and for damages based on lease or licence and where the provisions of Karnataka Rent Act, 1999 are not applicable to a premises or where the dispute between the parties is of civil in nature, it is only the Civil Court which has jurisdiction to try the matter and the Small Causes Courts have no jurisdiction to try the same. 15. In the instant case, the suit filed by the respondent is for the relief for possession and for damages, as such it is contended by the Counsel for the respondent that it is only the Civil Court which has jurisdiction to try the said suit. On the other hand, relying on the decision reported in the case of KHANDELWAL BROTHERS COMPANY cited supra, the Counsel for the appellant contended that even after issuance of the notice by the respondent terminating the tenancy, the appellant continues to be a tenant and is liable to pay agreed rent only, as such his possession does not become unlawful and hence such tenant paying damages for use and occupation of the premises does not arise. So all other rights, obligations and liabilities continue to operate under the Rent Act. So all other rights, obligations and liabilities continue to operate under the Rent Act. Thus landlord can maintain a suit for ejectment and rent in the Court of Small Causes as the question of tenant paying damages does not arise. Hence it is contended that only the Court of Small Causes has jurisdiction to try the suit. 16. In view of the above discussed settled position of law and facts involved in this case, it is clear that, after issuance of notice by the respondent terminating the tenancy of the appellant, the appellant continued to be in possession of the suit schedule premises as a statutory tenant and hence the question of he paying damages does not arise, however the respondent can certainly recover the rents form the appellant. Thus if the Rent Act is applicable to the suit schedule premises, to recover possession, the respondent ought to have filed an eviction petition before the Court Small Causes and no suit can be filed before a Civil Court, as it is only the Small Cause Court which has jurisdiction over the matter. 17. In the instant case, though the monthly rent for the suit schedule premises is only Rs. 610/- and the same is within the amount of rent covered under the Rent Act, interestingly the suit schedule premises being a commercial premises and the area of the premises is more than 14 Sq. Mts, the Karnataka Rent Act of 1999 would not be applicable to the suit schedule premises and Section 2(g) of the Karnataka Rent Act in this regard is very clear that the provisions of the Karnataka Rent Act is applicable “to any premises used for non-residential purpose but excluding premises having a plinth area of not exceeding fourteen square meters used for commercial purpose.” Thus, when the provisions of Karnataka Rent Act is not applicable to suit schedule property, the question of appellant continuing to be a statutory tenant under the respondent even after termination of tenancy does not arise. The legal fiction of a statutory tenant cannot be invoked in respect of a tenant not covered by the Karnataka Rent Act, 1999 and such tenants would be governed only by the provisions of Sections 106 and 111 of the Transfer of Property Act. The legal fiction of a statutory tenant cannot be invoked in respect of a tenant not covered by the Karnataka Rent Act, 1999 and such tenants would be governed only by the provisions of Sections 106 and 111 of the Transfer of Property Act. Therefore, it is only the Civil Court which had jurisdiction over the suit filed by the respondent and the Small Causes Court had no jurisdiction over the suit schedule premises. 18. Thus the trial Court had jurisdiction to decide the suit filed by the respondent against the appellant and after considering the evidence placed on record, it has rightly held that there is valid termination of tenancy by the respondent, he issued legal notice terminating the tenancy of the appellant on 05-01-1998 with effect from 28-02-1998 the office copy of said legal notice is marked as Ex.P.2, further that the appellant received the said notice on 08-01-1998 which is clear from the postal acknowledgment marked as Ex.P.3, thus the defendant was served with quit notice more than 15 days in advance of the effective date of termination of tenancy, and thus the Court below is right in holding that the renancy is validly terminated. Further the order of the trial Court with regard to payment of damages by the appellant at the rate of Rs. 610/- per month is proper and correct and there is no illegality in the same. Thus viewed from all angles I do not find any good grounds to interfere with the order of the trial Court. Hence this appeal fails and is liable to be dismissed. 19. Accordingly this appeal is dismissed. However, the appellant is given time till 31-8-2008 to vacate and hand over vacant possession of the suit schedule premises to the respondent. Till then, he shall pay rents regularly to the respondent. The amount in deposit before this Court if any, made by the appellant shall be released in favour of the respondent. No order as to costs.