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2014 DIGILAW 970 (KAR)

Tej Shetty v. A. A. Suresh Kumar

2014-11-07

ARAVIND KUMAR

body2014
Judgment : 1. This is a tenant's revision petition challenging the judgment and decree passed by Chief Judge, Small Causes Court, Bangalore dated 31.08.2014 in S.C.No.1998/2002. 2. I have heard the arguments of Sri S.Shaker Shetty, learned Advocate appearing for petitioner tenant and Sri Sharath S Gowda, learned Advocate appearing for respondent - landlord. Perused the records. 3. It is the contention of Sri Shaker Shetty, learned Advocate appearing for petitioner that suit in question is not maintainable on the following grounds: (1) Court fee paid is not sufficient and as required under Section 29 of Karnataka Court Fees & Suits Valuation Act, 1958; (2) Petitioner ought to have filed an eviction petition under the Karnataka Rent Act, 1999 and Small Causes Court had no jurisdiction to entertain a suit for ejectment; (3) The description of the property as described in the Schedule to the plaint is improper and not correct; (4) Measurement of the property as described in the schedule to the plaint is incorrect. Elaborating his submissions, he would contend that the issue regarding Court fee ought to have been adjudicated at the first instance by the trial Court and not while adjudicating other issues, since Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as 'KCF & SV Act' for short) mandates that same has to be determined at the first instance. He would also contend that Section 41(2) of KCF & SV Act is not at all attracted and as such, invoking of the said provision by the plaintiff is improper and Court fee ought to have been paid under Section 29 of KCF & SV Act, 1958. 4. He would also contend that revision petitioner is a tenant holding over as indicated under Section 116 of the Transfer of Property Act, 1882 after termination of tenancy and as such suit in question was not maintainable since revision petitioner had not paid rents or damages to respondent- landlord after termination. Hence, he contends plaintiff ought to have filed suit for possession of suit schedule property. In support of his submissions, he has relied upon several judgments as per memo filed. 5. Hence, he contends plaintiff ought to have filed suit for possession of suit schedule property. In support of his submissions, he has relied upon several judgments as per memo filed. 5. Per contra, Sri Sharath S Gowda, learned Advocate appearing for respondent-plaintiff would support the judgment and decree passed by the trial Court and contends that when no application has been filed to treat issue relating to Court fee as a preliminary issue or an application under Order 7 Rule 11 CPC not having been filed, it did not preclude the Court adjudicating the dispute to decide issue regarding Court fee along with other issues and submits that exercise undertaken by the trial Court in this regard is just and proper and he would submit, that even otherwise, such plea having not been raised before the trial Court or before this Court, revision petitioner is estopped from raising such a plea at this stage. He would also submit that under reply notice Ex.P-2 defendant has admitted that he is a tenant and has not stated that he is an unauthorized occupant and as such, Court fee paid under Section 41(2) of the KCF & SV Act is in accordance with law and as such he prays for rejecting the said contention. With regard to incorrect measurement and improper description of suit schedule property is concerned, he would contend that trial Court has considered the said plea and answered the same in the negative by assigning detailed reasons at paragraph 12 and he supports the said finding and prays for dismissal of the revision petition. 6. Having heard the learned Advocates appearing for the parties and on perusal of the judgment and decree passed by trial Court as also the records secured from trial Court, I am of the considered view that following points would arise for my consideration in this revision petition: (1) Whether judgment and decree passed by trial Court suffers from any material irregularity or illegality calling for exercise of revisional jurisdiction by this Court? (2) What order? BRIEF BACKGROUND OF THE CASE: 7. Revision petitioner - tenant was inducted by one Sri B.D.Ramesh in the year 1968. On purchase of the suit schedule property by respondent -plaintiff, revision petitioner started paying rents to the respondent-plaintiff. (2) What order? BRIEF BACKGROUND OF THE CASE: 7. Revision petitioner - tenant was inducted by one Sri B.D.Ramesh in the year 1968. On purchase of the suit schedule property by respondent -plaintiff, revision petitioner started paying rents to the respondent-plaintiff. In the year 1983 respondent herein filed an eviction petition against the revision petitioner - defendant in HRC No.3627/1983 and said eviction petition came to be allowed by order dated 02.01.1993 whereunder the revision petitioner herein was directed to quit, vacate and handover vacant possession to respondent -landlord. Being aggrieved by said judgment, revision petitioner herein filed HRRP No.209/1994 before this Court and in the said revision petition a compromise was entered into between parties and portion of the premises in occupation of the revision petitioner - tenant came to be surrendered in favour of respondent plaintiff as agreed thereunder and thereafter tenancy was continued in respect of remaining portion namely, suit schedule premises in question. 8. Respondent - plaintiff got issued a legal notice dated 05.10.2002 - Ex.P-1 whereunder tenancy of the defendant - revision petitioner came to be terminated which notice was duly replied by the defendant on 30.10.2002 as per Ex.P-2. Thereafter, plaintiff filed the suit in question namely, S.C.No.1998/2002 which came to be decreed on 31.08.2004 after contest, whereunder the revision petitioner was granted six months time from the date of order to deliver vacant possession of the suit schedule premises to the plaintiff. It is this judgment which is under challenge in the present revision petition which has been pending from past 10 years (present revision petition has been filed on 14.12.2004). RE: POINT NO.(1) 9. Perusal of the records would indicate that plaintiff has valued the suit in question under Section 41(2) of KCF & SV Act contending that annual rent is Rs.3,000/- namely, Rs.250/-per month and accordingly, Court fee has been paid. It is no doubt true that consent of a party to lis does not confer jurisdiction on court. There cannot be any dispute to the proposition of law that issue regarding Court fee will have to be heard as a preliminary issue before evidence is recorded on the merits of the claim. It is no doubt true that consent of a party to lis does not confer jurisdiction on court. There cannot be any dispute to the proposition of law that issue regarding Court fee will have to be heard as a preliminary issue before evidence is recorded on the merits of the claim. This exercise has to be undertaken by trial Court in the event of the subject matter of the suit not having been valued properly or the Court fee paid is not sufficient so as to enable the plaintiff to pay the requisite Court fee after such order being passed. Subsection (2) of Section 11 of KCF & SV Act would indicate that all questions arising on such plea shall be heard and decided before evidence is recorded on the merits of the claim. If an issue regarding Court fee is raised in the written statement it shall be decided before recording evidence on other issues. There is no discretion left to the Court to postpone the decision regarding determination of issue of Court fee, when such a plea is taken in the written statement or before the evidence on merits of the case is recorded. In the instant case, a bald and vague plea has been raised by the defendant in the written statement which reads as under: "2. The suit relief is not valued properly. The plaintiff has failed to pay requisite Court fee on the plaint. Hence, the plaint is liable to be rejected." Having raised such a plea, defendant did not pursue the same either requesting the trial Court to try the same as a preliminary issue or did not choose to file any application seeking for determination of said issue as a preliminary issue. On the other hand, with open eyes, defendant went for trial. In fact, in the affidavit filed in support of his Examination -in-Chief, there is not even a whisper with regard to deficit Court fee. On the other hand, with open eyes, defendant went for trial. In fact, in the affidavit filed in support of his Examination -in-Chief, there is not even a whisper with regard to deficit Court fee. Trial Court has formulated point No.1 relating to payment of Court fee on the basis of vague plea found in the written statement and has found that suit in question is between the landlord and tenant and has rightly held that sub-section (2) of Section 41 of KCF & SV Act is attracted to the facts on hand since plaintiff has filed the suit in question after terminating tenancy as provided under Section 106 of Transfer of Property Act, 1882 and thereby accepted the valuation made by the plaintiff under Section 41(2) of KCF & SV Act. Said finding recorded by trial Court does not suffer from any infirmity whatsoever. The Hon'ble Apex Court in the case of RATNA VERMA RAJU VS SMT.VIMALA reported in AIR 1961 SC 1299 has held that where the contention of the defendant regarding Court fee is decided against him, he has no grievance and has no right of revision before the High Court. 10. In that view of the matter, issue regarding Court fee raised in the present revision petition by the defendant - tenant requires to be rejected and accordingly, it stands rejected. 11. Insofar as contention regarding non-maintainability of the suit and the Small Causes Court having no jurisdiction to entertain the suit for ejectment when examined with reference to the pleadings and the provisions of the Karnataka Small Causes Court Act, it requires to be rejected in view of the law laid down by the Full Bench of this Court in the case of ABDUL WAJID vs A.S.ONKARAPPA & OTHERS reported in ILR 2011 KAR 229 whereunder it has been held as follows: "CONCLUSIONS: 1) The opinion of the Division Bench that Court of Small Causes can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which KR Act applies runs contrary to the provisions of said Act as such it does not lay down correct law. In respect of the premises to which KR Act is applicable, only the 'Court' specified under clause (c) of Section 3 of KR Act alone is competent to make order for recovery of such premises on the landlord proving any one or more grounds enumerated therein. 2) In the context of jurisdiction of Small Causes Court, a suit for recovery of possession of immovable property does not include a suit for ejectment as such, a suit for ejectment is distinct and different from suit for recovery of possession of immovable property or for recovery of any interest in such immovable property. 3) In the context of jurisdiction of Court of Small Causes to take cognizance of a suit for ejectment, recovery of mesne profits would not amount to either recovery of an interest in the immovable property or determination or enforcement of any other right or interest in the immovable property and the Court of Small Causes is competent to consider prayer for mesne profits against non-statutory tenant after termination/determination of lease subject to the pecuniary jurisdiction. The contrary view expressed by the Division Bench in this regard does not lay down correct law. 4) Court of Small Causes have jurisdiction to take cognizance of not only a bare suit for Ejectment but also a suit for Ejectment with a prayer for recovery of mesne profits or damages, subject to its pecuniary limits, in respect of the premises to which KR Act is not applicable. The interpretation placed by the Division Bench in Sarojamma's case, on clause (b) of Article 4 of Schedule to KSCC Act does not lay down the correct law. 5) The suits for ejectment with or without prayer for rent, mesne profits or damages, pending before the Civil Courts, either upon re-presentation of plaints pursuant to decision in Sarojamma's case or presented afresh after Sarojamma's case, the value of the subject matter of which is within the pecuniary limits of the Courts of Small Causes, shall be transferred to the Court of Small Causes, which on receipt of such records shall proceed from the stage at which they were pending before Civil Court and dispose them of in accordance with law." 12. In the instant case, the suit had been filed initially for recovery of possession with mesne profits and the prayer for mesne profits was given up by the plaintiff by filing a memo on 22.07.2003 which seems to have been obviously filed to overcome the application filed by defendant under Order 7 Rule 11 CPC. In fact, the trial Court while accepting the memo filed by the plaintiff has observed as under: "Plaintiff files a memo stating that he does not press the prayer (b) for damages accordingly, plaintiff is permitted to give up prayer (b) for amendment of plaint. The counsel for defendant submitted that in view of deletion of prayer (b), the application filed by him under Order 7 Rule 11 CPC does not survive at all. Hence the said application is dismissed. For evidence of defendant by : 08.08 Sd/- Chief Judge" 13. In the light of memo filed by the plaintiff- landlord having been accepted by trial Court and the defendant -tenant giving up his prayer in the application filed under Order 7 Rule 11 CPC and same having been accepted by the trial Court by rejecting the said application, it would not lie in the mouth of revision petitioner-tenant to contend that mesne profits has been claimed in the suit in question and as such the jurisdiction of the Small Causes Court stand ousted. In view of the above facts, second contention raised by Mr.Shaker Shetty deserves to be rejected and accordingly, it is hereby rejected. 14. Insofar as contention Nos.3 and 4 are concerned, which relates to improper description of the schedule property or the measurement of the schedule property as described in the schedule of the plaint being incorrect when examined with reference to the pleadings and exhibits, it would indicate that plaintiff has sought for ejectment of defendant from the property as described under the schedule. It reads as under: "SCHEDULE A portion of the non-residential portion in ground floor of premises bearing No.26/B, Sajjan Rao Road, V.V.Puram, Bangalore-560004, measuring East to West 15'11" and North to South on the eastern side 15'8" and on the Western side 10'8" together with a toilet on the North Eastern corner and bounded on the: East by: Residential unit in premises No.26, West by: Sajjan Rao Road, North by: Property of Srinivasa Bearing No.22/1 & South by: A portion of premises No.26/B, in the Occupation of the Plaintiff." 15. As could be seen from the above Schedule, to the South of the suit schedule property is the portion of the premises No.26/B which is in occupation of the plaintiff. Between the same parties, there were earlier proceedings which culminated in a compromise petition being filed under Order 23 Rule 3 CPC before this Court in HRRP No.209/1994 as already noticed hereinabove. Along with said compromise petition a sketch also came to be filed indicating thereunder the portion which was handed over to the respondent-landlord and the portion which came to be retained by revision petitioner-tenant and they have been delineated by the words 'ABCDE&F' and 'HEFGA&J' respectively. The compromise petition and the sketch appended to the compromise petition came to be produced before trial Court and were got marked as Exhibit-P-3 and P-5 respectively. In fact, the revision petitioner herein who was also revision petitioner in HRRP 209/1994 had filed an affidavit along with compromise petition admitting that he was continuing as a tenant in respect of the portion marked as 'HEFGA&J' in the sketch which he had retained. His admission in the affidavit so filed reads as under: "1. I submit that myself and the respondent have entered into a compromise petition, and according to compromise petition, it is agreed that I should handover the portion marked as 'ABCDE&F' and retain the portion marked as 'HEFGA&J' to myself, and continue as a tenant in that portion and I have agreed for the said compromise and I have no objection to pass orders in accordance with the said compromise petition." 16. The sketch - Ex.P-5 would also indicate the measurement of the portion 'HEFGA&J' retained by the revision petitioner herein and the said measurement shown in the sketch when compared with the measurement reflected in the plaint schedule, it would clearly indicate that it is one and the same. The sketch - Ex.P-5 would also indicate the measurement of the portion 'HEFGA&J' retained by the revision petitioner herein and the said measurement shown in the sketch when compared with the measurement reflected in the plaint schedule, it would clearly indicate that it is one and the same. Hence, contention raised by Sri Shaker Shetty in this regard cannot be accepted and is liable to be rejected and accordingly, it stands rejected. In the light of the discussion made herein above, point No.1 has to be answered in the negative i.e., against the revision petitioner and in favour of respondent - landlord. RE: POINT NO.(2) 17. Mr.Shaker Shetty, learned Advocate appearing for revision petitioner tenant has contended by way of alternate plea that revision petitioner has been carrying on his profession of Dental Clinic in the suit schedule property from the year 1968 and as such, reasonable time of three years be granted to vacate and handover vacant possession of suit schedule premises to the respondent - landlord herein. The said prayer cannot be entertained for reasons more than one. Firstly, the learned Advocate appearing for respondent -landlord has contended that revision petitioner has not paid the rents from the date of termination of tenancy and even otherwise, the premises is bonafide required by the landlord for his own use and as such, he prays for rejection of the said prayer. Secondly, this revision petition itself has been pending before this Court from past 10 years. 18. Considering the rival contentions, I am of the considered view that ends of justice would be met if one month time is granted from today to the revision petitioner to vacate and handover vacant possession of suit schedule premises since patients of the revision petitioner would definitely approach him for treatment at whichever place he would re-locate himself since there would be a special bondage between a Doctor and his patient. 19. It also requires to be noticed that revision petitioner -tenant by default has already got 10 years time namely, on account of pendency of present revision petition from the date of filing i.e., 14.12.2004 till date. 20. For the reasons aforestated, I proceed to pass the following: ORDER 1) Revision petition stands dismissed by confirming the judgment and decree passed by the Chief Judge, Small Causes Court, Bangalore dated 31.08.2004 in S.C.NO.1998/2002. 20. For the reasons aforestated, I proceed to pass the following: ORDER 1) Revision petition stands dismissed by confirming the judgment and decree passed by the Chief Judge, Small Causes Court, Bangalore dated 31.08.2004 in S.C.NO.1998/2002. 2) However, time granted by trial Court is modified and one month time is granted to the revision petitioner - tenant to vacate and handover vacant possession of petition schedule premises to respondent-landlord. 3) No order as to costs. 4) Registry to re-transmit the original records to the jurisdictional Court.