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2008 DIGILAW 256 (KAR)

Nisar Ahmed v. V. T. Jayavelu

2008-05-30

SUBHASH B.ADI

body2008
JUDGMENT Subhash B. Adi, J.— This is defendant's appeal against the judgment and decree dated 13th December 2002 in O.S. No. 15131/1999. 2. The parties will be referred to as arrayed before the trial court. 3. Respondent - plaintiff sought for decree for delivery of actual vacant possession of schedule property and for damages at Rs. 10,000/- per month. 4. Case of the plaintiff was that, he had filed H.R.C. No. 10040/1996 before the Additional Small Causes Judge under Section 21(1)(h), (j) and (p) of the Karnataka Rent Control Act (hereinafter referred to as 'the Act') for eviction of the defendant. However, the said petition was dismissed in view of the provisions of Section 31 of the Act and also in view of the decision of the Apex Court upholding the validity of Section 31, as the rent of the schedule property was more than Rs. 500/- and it was let out for commercial purpose. It is also alleged that the tenancy of the defendant was terminated by legal notice dated 30th December 1998. The said legal notice was sent by RPAD and also certificate of posting and further by affixture. It is also alleged that despite termination of the tenancy, the defendant had not vacated the suit schedule property. It is alleged that the cause of action accrued to the plaintiff to seek possession and also for damages. 5. Defendant resisted the suit by filing written statement interalia, denying the allegations made in the plaint and alleged that, there is no valid termination of tenancy and further alleged that, the plaintiff is not entitled for compensation. 6. The trial court based on the pleadings, framed the following issues: 1. Whether plaintiff proves that the defendant has been his tenant in reaped of suit schedule property No. 30, M.F. Naronha Road, Russel Market, Square, Bangalore, on a monthly rental of Rs. 600/-? 2. Whether the plaintiff has properly terminated the tenancy of the defendant? 3. Whether the plaintiff is entitled to the damages; if so, at what rate? 4. Whether plaintiff is entitled to the reliefs sought for? 5. What decree or order? 7. The trial court on appreciation of the evidence held that, the defendant is the tenant of the suit schedule property on the monthly rent of Rs. 600/- and the tenancy has been validly terminated and decreed the suit. 8. 4. Whether plaintiff is entitled to the reliefs sought for? 5. What decree or order? 7. The trial court on appreciation of the evidence held that, the defendant is the tenant of the suit schedule property on the monthly rent of Rs. 600/- and the tenancy has been validly terminated and decreed the suit. 8. Learned Counsel appearing for the defendant submitted that, the suit is not maintainable before the City Civil Court, as the defendant does not cease to be a tenant He relied on the provisions of Section 31 of the Act and submitted that, since the rent is more than Rs. 500/- and premises being used for commercial purpose, Part-V of the Act is excluded and in respect of all other Parts, the Act is applicable. The defendant continues to be tenant even after the determination of a lease. If the defendant continues to be tenant, the suit for possession before the Civil Court on the basis of termination notice is not maintainable. He submitted that the Civil Court has no jurisdiction. 9. He also submitted that, the question of jurisdiction can be raised at any stage of the proceedings including in the execution proceedings. He further submitted that, the decree passed by the Court is without jurisdiction and is nullity in the eye of law. 10. In this regard, he relied on a decision of the Apex Court reported in V. Dhanapal Chettiar Vs. Yesodai Ammal, AIR 1979 SC 1745 and submitted that, even if the lease is determined by forfeiture under the Transfer of Property Act, the tenant continues to be a tenant and there cannot be any forfeiture of tenancy in the eye of law, the tenant becomes liable to be evicted and forfeiture comes into play only if the tenant has incurred the liability to be evicted under the Act and not otherwise. He submitted that, Section 3 Clause (r) of the Act defines 'tenant', which includes the tenant who has suffered an order of eviction. He further submitted that, even after the termination of the tenancy, defendant continues to be a tenant and as such, Section 8 of the Karnataka Small Causes Courts Act, 1964 read with Schedule provides exclusive jurisdiction to seek ejectment of tenants and no other Court has got the jurisdiction. He further submitted that, even after the termination of the tenancy, defendant continues to be a tenant and as such, Section 8 of the Karnataka Small Causes Courts Act, 1964 read with Schedule provides exclusive jurisdiction to seek ejectment of tenants and no other Court has got the jurisdiction. In this regard, he relied on a decision of Division Bench of this Court reported in B.S. Giridhar Vs. P.V. Shetty, ILR (1984) KAR 1115 and submitted that, Section 31 exempts the operation of Part-V dealing with control of eviction of tenants in respect of non-residential premises, whose monthly rent exceeds Rs. 500/-. The said Section cannot be read as providing exemptions from the other provisions of the Act in respect of such class of premises. The immunity is confined to evictions and this is clear from Section 2 Sub-section (2) of the Act, which makes it clear that, Part-II and Part-III of the Act continue to apply. Relying on the said decision, he further submitted that, the issue as to whether the defendant is a tenant or not is well-settled in view of the decision of the Division Bench. He further relied on another decision reported in 2001(4) KLJ 412 in the matter of Triveni Theatres, Bangalore v. R.S. Devakumar and Anr. and submitted that, the view of the Division Bench is followed by the learned Single Judge of this Court and further submitted that, subsequently also, the learned Single Judge of this Court in a judgment reported in Ramesh P. Seth Vs. M.S. Krishna Murthy and Another, ILR (2002) KAR 565 has followed the said decision and has held that, tenant occupying non-residential premises, rent of which exceeds Rs. 500/- continues to be a tenant even after the determination of lease and is liable to pay rent and not damages. He further relied on another decision of this Court reported in Bangalore Printing and Publishing Co. Ltd. Vs. 500/- continues to be a tenant even after the determination of lease and is liable to pay rent and not damages. He further relied on another decision of this Court reported in Bangalore Printing and Publishing Co. Ltd. Vs. Soukar T. Premnath, ILR (2004) KAR 98 and submitted that, suit for ejectment and suit for possession are two different suits; suit for ejectment is filed before the Small Causes Court in respect of cases to which, Act is applicable; suit for possession is filed before the Civil Court in respect of cases to which, Act is not applicable and the possession is sought under the ordinary law before the ordinary Civil Court by invoking the provisions of the Transfer of Property Act. He submitted that, this Court has held that, tenant even after termination continues to be a tenant and governed by the provisions of the Act. 11. As regards to raising of the jurisdiction issue, he relied on a judgment of the Apex Court reported in Kiran Singh and Others Vs. Chaman Paswan and Others, AIR 1954 SC 340 and submitted that, decree passed by a Court having no jurisdiction, is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and in collateral proceedings. He further submitted that, since the issue touches the jurisdiction of the Court to pass the decree, it can be raised in this appeal. He relied on another decision of this Court reported in 1989(1) KLJ 83 in the matter of Shivamurthi Mallayya Swami v. Mahadev Umarane and submitted that, this Court interpreting Section 9 of the Karnataka Small Cause Courts Act has held that, no amount of acquiescence, waiver, consent, ignorance of law, bonafides, good faith or any other consideration can confer jurisdiction on the Court. 12. Per contra, learned Counsel appearing for the plaintiff submitted that, Section 31 excludes the protection conferred on the tenant from eviction. He submitted that. Part-V of the Act deals with protection of the tenants from eviction and if Part-V is excluded, the tenant is not protected under the Act and if there is no protection, the only course open to seek possession against the tenant is to file a suit for possession. He submitted that. Part-V of the Act deals with protection of the tenants from eviction and if Part-V is excluded, the tenant is not protected under the Act and if there is no protection, the only course open to seek possession against the tenant is to file a suit for possession. The object of the Act is to protect the tenant from eviction even in cases of determination of lease and it is only under such circumstances, the tenant is protected. Section 31 of the Act does not protect the tenant of non-residential premises, having monthly rent of more than Rs. 500/ - and submitted that, in respect of such tenants, the only course open to the lessor or the landlord is to seek determination of lease and he further submitted that, lease is determined in this case. Once the lease is determined, the occupation of the defendant becomes wrongful occupation and is liable to pay the damages. In such circumstances, it is only the Civil Court, which has got jurisdiction to pass decree for possession and damages. 13. He relied on Section 8 of the Karnataka Small Cause Courts Act and submitted that the Small Cause Court has no jurisdiction to pass decree for possession. In this regard, he relied on the Schedule and pointed out that, the Small Cause Court has no jurisdiction to award damages. He further submitted that, the notice of termination is issued under Section 106 of the Transfer of Property Act and once the lease is determined, the status of the defendant becomes that of trespasser and there is no protection under the provisions of the Act, as Part-V of the Act is excluded and submitted that, if there is no protection under the Act and if the lease is determined, the status of the tenant cannot be relegated to that of a tenant and his position remains as a trespasser and submitted that the suit is maintainable and the decree passed by the court below does not call for interference. 14. In the light of the contentions raised by both the parties, the point that arises for consideration in this appeal is: as to whether the Civil Court has Jurisdiction to grant decree for possession and damages in respect of nonresidential premises having rent more than Rs. 500/- to which Part-V of the Act is not applicable? 15. 14. In the light of the contentions raised by both the parties, the point that arises for consideration in this appeal is: as to whether the Civil Court has Jurisdiction to grant decree for possession and damages in respect of nonresidential premises having rent more than Rs. 500/- to which Part-V of the Act is not applicable? 15. It is very unfortunate case, a landlord files an eviction petition under Section 21 of the Act on the basis of the judgment of this Court striking the provisions of Section 31 of the Act. When the eviction petition was pending, the Apex Court upholds the validity of Section 31 of the Act. In view of the same, the plaintiff files the present suit for possession. The trial court also decreed the suit for possession. The defendant does not raise the issue of jurisdiction before the trial court. 16. In this appeal, the defendant has raised a specific ground of jurisdiction and has relied on the judgments of Apex Court as well as this Court. The Apex Court in the matter of V. Dhanapal Chettiar's case (supra), has held that, termination of tenancy under Section 106 of the Transfer of Property Act is not necessary in respect of a statutory tenant, whose tenancy is protected under the Act despite the efflux of time or determination of the lease and has held that, tenant becomes liable to be evicted or forfeiture comes into play only if he has incurred the liability to be evicted under the provisions of the Act and not otherwise. 17. The Apex Court in the said judgment has held that, in respect of statutory tenant, whose rights are protected by the special statute, there is no requirement of terminating the tenancy. The Division Bench of this Court in B.S. Giridhar's case (supra), has held that, in respect of tenant of non-residential building having rent of more than Rs. 500/-, the Part-V of the Act is not applicable, but does not exclude the other Parts of the Act and the tenant continues to be a tenant and other Parts will continue to apply. 18. On interpretation of the provisions of the Act and the definition of 'tenant' as defined under Section 3(r). 500/-, the Part-V of the Act is not applicable, but does not exclude the other Parts of the Act and the tenant continues to be a tenant and other Parts will continue to apply. 18. On interpretation of the provisions of the Act and the definition of 'tenant' as defined under Section 3(r). the Division Bench of this Court has held that, tenant continues to be a tenant even after termination of the tenancy and his possession will not become unlawful and is liable to pay the rent as agreed. The said view is followed by this Court in subsequent decision in the matter of Triveni Theatres (supra) and Ramesh P. Seth (supra). The consistent view of this Court is that, Section 31 only excludes Part-V of the Act and does not exclude other parts of the Act. The definition of the 'tenant' under Section 3(r) of the Act includes even tenant against whom the order of eviction is passed and has consistently held that, for all purposes, even after eviction order, the tenant continues to be tenant till evicted and is liable to pay the rent and not damages. 19. Under the Karnataka Small Cause Courts Act, the jurisdiction is conferred on the Small Causes Court only in respect of cases arising under Clause 4 of the Schedule, inasmuch as suit for ejectment where the property has been let out under a lease or permitted to be occupied by a written instrument or orally, the Small Causes Court would be competent to take cognizance of a suit for the rent of the property and in such cases, the only substantial issue would be, 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 law for the time being in force. By reading of provisions of Section 8 read with Schedule, it excludes the suits for damages and suits for possession, but it includes suit for ejectment against the tenant and also includes the suit for recovery of which value does not exceed Rs. 25,000/-. 20. The similar issue fell for consideration before this Court in the decision reported in Bangalore Printing & Publishing Co. 25,000/-. 20. The similar issue fell for consideration before this Court in the decision reported in Bangalore Printing & Publishing Co. Ltd. (supra) and this Court on interpretation of the provisions of Section 8 Sub-sections (1), (2) and Section 9 of the Karnataka Small Cause Courts Act read with Schedule has held that, an exception is carved out in Clause (4) of the Schedule i.e., in cases of 'suit for ejectment' or where the property has been let under a lease or permitted to be occupied by a written instrument or orally, then only the Court of Small Causes would be competent to take cognizance of 'suit for ejectment'. It makes distinction between the suits for ejectment and suits for possession. Though Small Causes Courts' jurisdiction is excluded, but in case of suit for ejectment, the jurisdiction is conferred on it. Where the transaction is governed by the provisions of the Transfer of Property Act and the tenancy is terminated and the tenant is not governed by the provisions of the Act, the suit has to be filed before the regular Civil Court, where the suit is governed by the Rent Act or the provisions of the Act, in such cases, suit for ejectment has to be filed before the Small Causes Court. 21. On interpretation of the provisions of the Small Causes Courts Act, this Court has observed that, the suit for possession is not maintainable before the Small Causes Court, but in cases where the Act is applicable, the suit is maintainable before the Small Causes Courts Act and the similar view is taken by this Court in the decision reported in Khandelwal Brothers Co. Ltd. Vs. G.S. Nisar Ahmed, ILR (2004) KAR 2864 wherein this Court has observed that, Small Causes Courts cannot entertain a suit for possession with damages or mesne profits, it can entertain a suit only in cases of ejectment as envisaged under Article 4 of the Karnataka Small Causes Courts Act i.e., to say that, where the Act is applicable. Ltd. Vs. G.S. Nisar Ahmed, ILR (2004) KAR 2864 wherein this Court has observed that, Small Causes Courts cannot entertain a suit for possession with damages or mesne profits, it can entertain a suit only in cases of ejectment as envisaged under Article 4 of the Karnataka Small Causes Courts Act i.e., to say that, where the Act is applicable. When similar question came up before the Division Bench of this Court in C.R.P. No. 101/2004 dated 13th July 2007, the Division Bench considering the earlier decisions has held that: The Small Causes Court can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which Karnataka Rent Act and not in respect of the tenants/persons who occupy other premises to which the Act does not apply and whose tenancy has been determined or has come to an end either by efflux of time or by withdrawal of the same. 22. The Division Bench has held that, where the Rent Act is applicable, the suit for ejectment is maintainable before the Small Causes Court. 23. In the light of the decisions of the Division Bench of this Court in the matters of B.S. Giridhar Triveni Theatres, Bangalore and Ramesh P. Seth, wherein it is held that, even in case of exclusion of Part-V of the Act, the tenant continues to be tenant. If the defendant continues to be tenant and is liable to pay only the rent and not the damages, in my view, the suit for possession and damages before the Civil Court is not maintainable, even though it may work out hardship to the landlord. Though the provisions of the Act are applicable and the defendant being a tenant, the suit is filed before the City Civil Court for possession and damages, when the Karnataka Rent Control Act was in force and provisions of the other Parts of the Act were applicable, as such, the suit before the City Civil Court is not maintainable. This is also clear from the definition of 'tenant' under Section 3(r) of the Act. If the defendant continues to be tenant even after the notice under Section 106 of the Transfer of Property Act, then it is only Small Cause Court, which has got the jurisdiction and not the Civil Court. 24. This is also clear from the definition of 'tenant' under Section 3(r) of the Act. If the defendant continues to be tenant even after the notice under Section 106 of the Transfer of Property Act, then it is only Small Cause Court, which has got the jurisdiction and not the Civil Court. 24. Since the issue touches the jurisdiction of the Court, the contention of jurisdiction cannot be rejected only on the ground that it is not taken before the trial court, in the light of the observation made by the Apex Court in the matter of Kiran Singh and Ors. (supra) and the decision of Division Bench of this Court in Shivamurthi Mallayya Swami's case (supra). 25. During the pendency of the appeal, the Karnataka Rent Control Act is repealed and the Karnataka Rent Act has come into force. In the light of the same, liberty is given to the lessor to seek appropriate remedy in accordance with law. 26. In view of the above, the appeal is allowed. The judgment and decree dated 13th December 2002 in O.S. No. 15131/1999 is quashed. 27. In the light of the above, the Cross Objection No. 6/2007 does not survive for consideration. Accordingly, it is dismissed.