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2015 DIGILAW 1126 (KAR)

Sandeep Chowhan v. Krishnaraj Bhat

2015-09-26

B.S.PATIL

body2015
ORDER 1. This revision petition is directed against the judgment dated 24.03.2015 passed by the Small Causes Court dismissing S.C.No.1419/2012 filed by the revision petitioners seeking ejectment of the tenant. 2. The jural relationship of landlord and tenant between the revision petitioners and the respondent is not in dispute. The factum of termination of tenancy by issuing a legal notice is also not in serious dispute and indeed the findings of the Court below are in favour of revision petitioners – landlord in this regard. However, the dispute before the Court below was with regard to the measurement of the property. The tenant contended that measurement of the premises was less than 14 sq.mtrs., whereas the landlord contended that it was more than 14 sq.mtrs. and was therefore, not covered by the Karnataka Rent Act. 3. The other question for consideration was with regard to the pecuniary jurisdiction of the Small Causes Court to entertain the small cause suit in the light of the prayer made in the suit, whereunder the revision petitioners – plaintiff had sought for mesne profits at the rate of Rs.1,000/per day from the date of suit till delivery of shop premises to the plaintiffs. 4. The Court below has held that the Court of Small Causes had jurisdiction only to take cognizance of suit for ejectment along with mesne profits subject to its pecuniary limits, but, in the case before it the plaintiffs had sought for mesne profits at the rate of Rs.1,000/per day which would come to Rs.3,60,000/per annum, hence, it did not have jurisdiction to entertain the suit. In this background, the present revision petition has been filed. 5. Learned counsel for the landlord revision petitioners Sri P.D.Surana places reliance on the judgment of the Full Bench in the case of ABDUL WAJID Vs. ONKARAPPA – ILR 2011 KAR 229. Inviting the attention of the Court to the observations made in paragraphs 91 & 93 of the judgment and placing reliance on the judgment of the Apex Court in the case of GOPALAKRISHNA PILLAI & OTHERS Vs. MEENAKSHI AYAL & OTHERS AIR 1967 SC 155 it is contended that future mesne profits, will not determine the cause of action to the plaintiffs and that based on the mesne profits sought, pecuniary jurisdiction of the Court cannot be determined. MEENAKSHI AYAL & OTHERS AIR 1967 SC 155 it is contended that future mesne profits, will not determine the cause of action to the plaintiffs and that based on the mesne profits sought, pecuniary jurisdiction of the Court cannot be determined. He urges that in a suit for ejectment what is relevant for the purpose of deciding pecuniary jurisdiction is the rent payable for the year next before the presentation of plaint. 6. Learned counsel for the respondent supports the findings recorded by the Court below and contends that no case has been made out for interference in exercise of revisional powers of this Court. She also points out that the findings with regard to the measurement of the shop premises is incorrect. 7. Upon hearing the learned counsel for both parties and on perusal of the entire materials on record, I find that the Court below has recorded its findings with regard to the measurement of the premises based on the report of the Court Commissioner, Sale Deed Ex.P4 and oral evidence of P.W.1. Therefore, I do not find any justification to interfere with the said finding. 8. The only controversy is with regard to the pecuniary jurisdiction based on which the Court below has come to the conclusion that small cause suit was not maintainable. For this purpose, mesne profits claimed at the rate of Rs.1,000/per day has been taken as basis to hold that annual value of mesne profit would come to Rs.3,60,000/and therefore, small cause suit was not maintainable. 9. As rightly contended by the learned counsel for the revision petitioners, future mesne profits will not determine the cause of action. The cause of action on the date of institution of the suit will have no relevance to the mesne profits which the defendant – tenant would be liable to pay for occupation of the premises during the pendency of the suit. It would not be possible for the plaintiff to plead cause of action or to value his suit based on the future mesne profits for the purpose of pecuniary jurisdiction or for that matter for the purpose of payment of court fee. Therefore, for determining pecuniary jurisdiction of the small cause court, the amount of future mesne profit sought will not have any relevance. 10. Therefore, for determining pecuniary jurisdiction of the small cause court, the amount of future mesne profit sought will not have any relevance. 10. Indeed in the judgment of the Full Bench in the case of Abdul Wajid referred to supra in paragraph 93, this Court has clearly and categorically stated that for the purpose of deciding the pecuniary jurisdiction of the Small Causes Court in terms of the Karnataka Court Fees and Suits Valuation Act, what is relevant is the rent payable for the year next before the date of presentation of plaint and that even if a suit for ejectment is filed after lapse of one year of determination/termination of lease/tenancy, for the purpose of finding out pecuniary jurisdiction of the Court, what is relevant is the rent payable for one year prior to the presentation of the plaint. 11. Useful reference also can be made to the judgment in the case of Gopalakrishna Pillai referred to supra, wherein the Apex Court has held that for passing a decree for mesne profits, there is an important distinction between future and past mesne profits; with regard to past mesne profits, the plaintiff has got existing cause of action on the date of institution of suit, whereas with regard to future mesne profits, plaintiff has got no cause of action on the date of institution of suit and it is not possible for him to plead the said cause of action or to value the suit for payment of Court fee thereon, at the time of institution of the suit. 12. Therefore, if the matter is examined in the light of the rulings referred to supra, it becomes clear that the Court below has proceeded on an erroneous assumption of fact that mesne profits sought at the rate of Rs.1,000/per day by the plaintiffs would determine the pecuniary jurisdiction. Therefore, the judgment under challenge deserves to be set aside. As jural relationship between the landlord and tenant has been admitted and the tenancy has been validly terminated by issuing notice in terms of Section 106 of the Transfer of Property Act and as the contention raised by the defendant – tenant that the Karnataka Rent Act was applicable to the case on hand because of the measurement of the shop premises has been rightly repelled, nothing more survives for consideration by the court below in this case. The suit filed seeking ejectment deserves to be decreed. 13. At this stage, it is pointed by the learned counsel for the respondent – tenant that the respondent – tenant has been running a pharmacy in the shop premises eking out his livelihood and therefore, sufficient time may be granted to enable him to rehabilitate himself by locating an alternative premises. Learned counsel for the revision petitioner fairly submits that reasonable time may be granted. 14. In the facts and circumstances of the case, I am of the view that one year time deserves to be granted to vacate the premises. 15. In the result, this revision petition is allowed granting one year time to the tenant – respondent to vacate the shop premises. He shall voluntarily vacate and handover vacant possession of the shop premises on or before 30.09.2016 to the revision petitioners. He shall file an undertaking to this effect. Insofar as mesne profits payable, the Court below is directed to conduct an enquiry under Order XX Rule 12 CPC in accordance with law.