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2011 DIGILAW 273 (KAR)

Gregory Peres v. Eigan Alexander Salins

2011-03-07

JAWAD RAHIM

body2011
Judgment Jawad Rahim, J. : 1. This revision has gained access to this Court under Section 115 Cr.P.C. assailing the order dated 02-02-2010 in M.A.No.45/2009 on the file of the II Addl. Civil Judge (Sr. Dvn.), Mangalore, D.K., confirming the order dated 15.12.2009 in O.S.No.843/2009 on the file of the IV Addl. Civil Judge (Jr. Dva.), Mangalore, allowing I.A. No. II filed under Order XXXIX Rules 1 and 2, C.P.C. for temporary injunction. 2. The petition has come up for final hearing and I have heard learned counsel for both sides. 3. The contextual facts are: (a) Mr. Eigan Alexander Salins filed a suit in O.S. 843/09 seeking a direction to declare that the resolution passed by the defendant (Association) on 24.1.2009 to cut off water supply and generator connection to the apartment owned by him (described in the Schedule to the plaint) as null and void. Along with the plaint, he filed two applications, one under Order XXXIX Rules 1 and 2, C.P.C. for grant of an ad-interim order of mandatory injunction to direct the defendants (appellants herein) to restore water supply and generator connection to his flat, and another application for an order of interim injunction to restrain any interference with the beneficial user of the schedule property. (b) In support of the relief, he averred he is the owner of the flat in Shangri-La Apartments at Kankanady, Mangalore, and was presently away abroad. He had appointed and nominated one Mrs. Sudana Salins, W/o Late Godwin S. Salins, to be as attorney to protect his interest and to take care of and maintain the flat (schedule property). (c) He further averred on 9.2.2009 the defendant Association disconnected water supply to his apartment without any reason and without notice to him, thereby acted arbitrarily depriving essential amenities including water and electric supply to the premises. He claimed he had paid monthly maintenance regularly to the Association and there was no default on his part in complying with the requirements of paying maintenance. (d) Referring to the provisions of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972, (hereinafter referred to as the Act, for brevity), he would submit no provision in the Act enables the manager or any person in the management of the defendant Association to cut off essential amenities enjoyed by the occupiers of the apartment, which includes himself. He them referred to Flat No.203 and 204 owned by other persons who had initiated similar action against the Association and were successful in obtaining a decree. (e) On these material propositions, he sought to declare the resolution dated 12.06.2008 as null and void and unenforceable. (f) In response to suit summons, the appellant entered contest and opposed the interlocutory applications filed by the respondent-plaintiff and also assertively contended the suit was not maintainable in the Court of Civil Judge Junior Division, Mangalore, where it was filed. In short, they raised a preliminary question regarding jurisdiction of the said court and also its jurisdiction to grant any interim order. By such defence, they tried to non-suit the plaintiff. (g) On the basis of interlocutory applications, the learned trial judge had granted ad interim order of injunction which was in force when the petitioner entered contest. Rejecting the contentions urged by the revision petitioner including the question raised by them regarding lack of jurisdiction of that court, learned judge, by the impugned order, granted the relief sought. Assailing it, petitioner was in appeal in M.A.45/09 reiterating all grounds including the question of jurisdiction and sought order passed granting ad interim injunction to be set aside. (h) As the impugned order was passed by the Civil Judge (Junior Division), petitioners filed the appeal against such order before the Civil Judge (Senior Division) which was the court of appeal as provided by Order XLIII, C.P.C. (i) The appellate judge (Civil Judge, Senior Division) declined to accept the contentions of the revision petitioners and dismissed the appeal by the impugned judgment dated 2.2.2010. (j) Assailing the order passed by the learned trial judge on I.As.I and II dated 15.12.2009 and the order dated 2.2.2010, defendants are in revision. 4. Learned counsel, Mr. Rego for M/s Rego and Rego, adverting to the factual matrix and the grounds it had taken before the trial court and appellate court, would submit that both the orders are unsustainable in law and are revisable by this court in exercise of revisional power under Section 115, C.P.C. He would submit the plaint averments make it clear that the respondents-plaintiff had sought relief under the provisions of the Act and therefore, he could file the application for grant of relief about his grievance only before the court conferred with jurisdiction to adjudicate the said application and not any other court. In this regard, he would submit the grievance of the respondent-plaintiff is about disconnection of water supply and electricity to his apartment as provided under Section 13 of the Act and therefore, as provided under sub-section (5) (a) of Section 13, the suit had to be filed in the Court of Small Causes, or in the Court of Civil Judge as referred to in clause (b), and not before the Civil Judge (Junior Division). He has referred to Section 12 and 13 of the Act to bring home this point. 5. At this juncture, without referring to the other ground urged by the learned counsel for the petitioner, learned counsel for the respondent would submit that the revision under Section 115, C.P.C. filed by the petitioner against the order passed in M.A. 45/09 is not maintainable. He has, therefore, raised the question regarding maintainability of the revision under Section 115, C.P.C. 6. In support of such contention, he would contend the order passed by the trial court is on the application under Order XXXIX Rules 1 and 2, C.P.C. which are appealable under Order XLIII, C.P.C. before the court of appeal provided by the Code. Since the impugned order has been passed affirming the order of the trial court passed in the interlocutory application, the relief sought by the revision petitioner comes within the mischief of the proviso to Section 115, C.P.C. and thus it is not maintainable. 7. Learned counsel Mr. Rego would submit the revision under Section 115, C.P.C. is maintainable as the petitioner had questioned the jurisdiction of the Civil Judge (Junior Division) to entertain the suit and therefore, the impugned order passed by both the courts is revisable under Section 115. 8. In view of the questions raised by the respondent about maintainability of this revision, it is desirable to refer to the grounds on which the revision petitioner had questioned the order of the trial court in M.A. 45/09. 9. It is not in dispute the revision petitioner had, at the earliest point of time, raised the ground through their counter to the application under Order XXXIX, C.P.C. before the trial court that it (Civil Judge, Junior Division) had no jurisdiction to entertain the suit filed by the respondent seeking for the relief under the provisions of Section 13 of the Act. If the trial court had accepted such objection raised by the defendant, undoubtedly the suit filed by the respondent-plaintiff would have been returned for presentation to the court of proper jurisdiction which would have terminated the proceedings. Since the trial court had declined to accept such plea, the suit has continued in the said court. Therefore, apart from other grounds on which the order on the interlocutory application has been questioned, since the petitioner had raised the question of jurisdiction before the trial court, any order passed rejecting such plea is revisable under Section 115, C.P.C. Thus I am constrained to discount the contentions of the respondent-plaintiff that the revision under Section 115, C.P.C. is not maintainable. On the other hand, as the question of jurisdiction had arisen as urged by the revision petitioner, the revision petitioner under Section 115 is maintainable in this court. 10. Now, the moot question to be decided in this court is, whether the Civil Judge (Junior Division) in whose court the respondent-plaintiff filed the suit raising cause of action accruing to him under Section 13 of the Act, had legal competence to entertain the suit. 11. Necessarily the conspectus of the provisions of Section 12 and 13 of the Karnataka Ownership Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1972, have to be considered. Section 12 reads thus: “12. General liabilities of a person who takes a flat- (1) Every person who has executed an agreement to take a flat shall pay at the proper time and place the price, the municipal taxes, water and electricity charges, ground rent (if any), and other public charges payable in respect of the flat taken by him and where a co-operative society or a company of persons taking the flats is to be constituted, cooperate in the formation of such society or company, as the case may be. (2) Any person who has executed an agreement to take a flat and who, without reasonable excuse fails to comply with or contravenes sub-section (1) shall, on conviction, be punished with fine which may extend to one thousand rupees.” From the provision extracted above, it is clear by sub-section (2) that ‘every person who has executed an to take a flat and who, without reasonable excuse fails to comply with or contravenes sub-section (1) ball, on conviction, be punished with fine which may extend to one thousand rupees.’ Therefore, it is clear that contravention of sub-section (1) exposes the owner/occupier of the flat to penal consequences. While such liability is cast on owner/occupier, Section 13 provides a safeguard. Section 13 reads thus: “13. MANAGER NOT TO CUT OFF, WITHHOLD, CURTAIL OR REDUCE ESSENTIAL SUPPLY OR SERVICE- (1) No person, who is a promoter, or who is in charge of management or connected with the management of a block or building of flats, whether as member of a managing committee, Director, Secretary or otherwise, or is responsible for the maintenance thereof (hereinafter in this section referred to as “the manager”), shall, without just and sufficient cause, wither by himself or through any person, cut off, withhold or in any manner curtail or reduce, any essential supply or service enjoyed by the person who has taken a flat (or by any person in occupation thereof through or under him) in respect of the flat taken, or agreed to be taken by him. (2) The person who has taken or agreed to take the flat or the occupier may, if the manager has contravened the provisions of sub-section (1), make an application to the Court for a direction to restore such supply or service. (3) If the Court on enquiry finds that the applicant or the person through or under whom he is in occupation has been in enjoyment of the essential supply or service, and that it was cut off or withheld or curtailed or reduced by the manager without just and sufficient cause, the Court shall make an order directing the manager to restore such supply or service before a date to be specified in the order. (4) The manager who fails to restore the supply or service before the date so specified, shall for each day during which the default continues thereafter be liable upon a further direction by the Court to that effect, to fine which may extend to one hundred rupees. (5) Notwithstanding anything contained in any law for the time being in force- (a) in any area for which a Court of small causes is established under the Karnataka Small Cause Courts Act, 1964, that Court, and (b) elsewhere, the Court of the Civil Judge, shall have jurisdiction to decided any application made under sub-section (2) of and no other Court shall have jurisdiction to entertain such application. No appeal shall lie from any order made on such application. (6) The District Court, may, for the purpose of satisfying itself that the order made on an application made under sub-section (2) was according to law, call for the case in which such order was made and pass such order with respect thereof as it thinks fit. (7) Any manager who contravenes the provisions of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three months or with fine or with both. (8) An offence under sub-section (7) shall be a cognizable offence. Explanation I- In this section, essential supply or service includes the supply of water, electricity lights in passages and on staircases, lifts and conservancy or sanitary service. Explanation II- For the purposes of this section, withholding any essential supply or service shall include acts or omission attributable to the manager on account of which the essential supply or service is cut off by the local authority or any other Competent Authority.” The provision extracted above leaves no scope for doubt that ‘no person who is a charge of the management or connected with the management of a block or building of flats whether as member of a managing committee, director, secretary or otherwise, or is responsible for the maintenance thereof, shall, without just and sufficient cause either by himself or through any person, cut off, withhold or in any manner curtail or reduce any essential supply or service enjoyed by the person who has taken a flat (or by any person in occupation thereof through or under him) in respect of the flat taken, or agreed to be taken by him’. Sub-section (2) envisages ‘the person who has taken or agreed to take the flat or the occupier may, if the manager has contravened the provisions of sub-section (1), make an application to the ‘Court’ for a direction to restore such supply or service.’ Sub-section (3) requires the court to conduct an enquiry and if it finds ‘that the application or the person through or under whom he is in occupation has been in enjoyment of the essential supply or service and that it was cut off or with-held or curtailed or reduced by the manager without just and sufficient cause, the Court shall make an order directing the manager to restore such supply or service before a date to be specified in the order.’ Sub-section (4) makes the manager liable to pay fine if he ‘fails to restore supply or service before the date so specified, shall for each day during which the default continues thereafter be liable upon a further direction by the Court to that effect, to fine which may extend to one hundred rupees’. Thus, it is clear that any aggrieved person named in Sections 12 and 13 has to file an application seeking the relief of restoration of essential amenities to the ‘Court’ named in sub-section (5), and not to any other court. 12. In the instant case, the plaintiff has sought the relief provided under Section 13 of the Act through the suit filed by him in O.S.843/09. Therefore, to seek such relief he had to file the suit in the court which is conferred with jurisdiction as referred to in subsection (5), Sub-section (5) of Section 13 reads thus: 13. (5) Notwithstanding anything contained in any law for the time being in force,- (a) in any area for which a Court of Small Causes is established under the Karnataka Small Causes Courts Act 1964, that Court; and (b) elsewhere, the Court of Civil Judge, shall have jurisdiction to decided any application made under sub-section (2) of and no other court shall have jurisdiction to entertain such application. No appeal shall lie from any order made on such application.’ Thus, it is clear that since by sub-section (5) two courts are specifically conferred with jurisdiction, namely, Court of Small Causes and Court of Civil Judge, the respondent-plaintiff had no choice but to file the application/suit in either of these courts depending on the area where the cause of action has arisen. 13. In the instant case, according to the respondent-plaintiff, the flat is situate in Kankanady, Mangalore. It is not in dispute the Court of Small Causes has been established in the city of Mangalore and therefore, in the area in which the cause of action arose, the Court of Small Causes which is in existence, alone had the jurisdiction. Hence, it has to be affirmatively held respondent-plaintiff should have filed the application/suit under Section 13 of the Act only in the Court of Small Causes which is established for the area and not the Court of Civil Judge (Jr. Dvn.) and JMFC, Mangalore or any other court. Instead he has filed the suit before the Court of Civil Judge (junior Divn.) which has no legal competence. In fact in clause (b) of sub-section (5) of Section 13, it is specifically indicated that in places where there is no Court of Small Causes, the Court of Civil Judge will have jurisdiction, which refers to Civil Judge (Sr. Dvn.) and not the Civil Judge (Jr. Dvn.). 14. We cannot ignore the fact that Karnataka Ownership Flats (Regulation of the promotion of Construction, Sale, Management and Transfer) Act, was enacted in the year 1972 when the hierarchy of the courts in the state of Karnataka was as follows: (a) Court of Munsiff (First Munsiff & Second Munsiff), (b) Court of Civil Judge and (c) District Court It is only in subsequent years that the designation of these courts is changed and they have been re-nomenclatured and designated as follows: (a) Court of Civil Judge (Junior Division), (b) Court of Civil Judge (Senior Division) and (c) District Court It admits of no doubt that in the year 1972, any reference to Court of Civil Judge refers to Court of Civil Judge (Senior Division) in the present hierarchy. In view of this fact situation, I have no hesitation to hold that the Civil Judge court referred to in clause (b) of sub-section (5) of Section 13 is not the Court of Civil Judge (Junior Division), but the Court of Civil Judge (Senior Division). The respondent-plaintiff did not choose to file his suit/application in the Court of Small Causes which is established in the local area, nor in the Court of Civil Judge, but has filed the suit fin the Court of Civil Judge (Junior Division) and JMFC, Mangalore, who certainly has no legal competence or jurisdiction to entertain the suit. 15. In the result, the conclusion is that suit/application filed by the respondent-plaintiff for the relief under Section 13(2) of the Act in the Court of Civil Judge (Junior Division) and JMFC, Mangalore had no legal competence or jurisdiction to entertain it. Respondent-plaintiff should have filed it before the court specified in sub-section (5)(a) of the Act that is the Court of Small Causes established for that area. 16. Consequently, the revision is allowed. The impugned order dated 15.12.2009 passed in O.S.843/09 by the Civil Judge (Junior Division) & JMFC, Mangalore, is set aside. Consequently the order passed in M.A.45/09 dated 2.2.2010 is also set aside. However, the respondent-plaintiff is permitted to take return of the plaint to be presented before the court of competent jurisdiction or resort to such other remedy as is open in law.