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2015 DIGILAW 713 (KAR)

PANKAJ L. KOTHARI v. T. K. NAGARAJ

2015-07-06

A.V.CHANDRASHEKARA

body2015
ORDER The lone respondent of a small causes case bearing S.C.1845/12 pending on the file of the XVI Small Causes Judge, Bengaluru City, Bengaluru, has filed this petition under Article 227 of the Constitution of India challenging the order of dismissal of her application under Section 151, C.P.C. read with Section 8(1) of the Karnataka Small Causes Courts Act, 1964. 2. The respondent herein is the plaintiff in a small cause case bearing no. S.C.1845/12, a petition filed for eviction of this petitioner from the suit schedule premises bearing No.1846/B, 4th Cross, ‘D’ Block, Rajajinagar II Stage, measuring 1,700 sq. feet. The petitioner herein being the sole defendant in the said suit had challenged the jurisdiction of the Small Causes Court to entertain the petition for eviction in the light of denial of the existence of the jural relationship of landlord and tenant between himself and the plaintiff, T.K. Nagaraj. The said application has been dismissed by a considered order dated 29.11.2013. 3. Parties will be referred to as plaintiff and defendant as per their ranking before the trial court. 4. The facts leading to the filing of the suit, S.C.1845/12 and the consequential order passed on 18.12.2014 and the consequential order passed on 13.10.2006 are as follows: a) The schedule property measuring 1,700 sq. feet is a commercial building and the same originally belonged to Smt. Jayamma, wife of Channegowda. The defendant-Pankaj Kothari had been inducted by Smt. Jayamma as a tenant on a monthly tenancy vide lease agreement dated 4.3.1988. The defendant was put in possession of the property by the lessor-Jayamma and he had agreed to pay rent at the rate of Rs.800/- p.m. He had paid Rs.10,000/- as advance to the lessor. b) The said Smt. Jayamma had instituted a suit for ejectment in O.S.2151/03 and the said suit had been decreed on 13.10.2006 granting two months time to the defendant therein to vacate and hand over vacant possession of the property. Against the said decree, Pankaj Kothari had chosen to file a civil revision petition in C.R.P.802/06 before this court against Smt. Jayamma and the petition was allowed vide order dated 20.8.2007 on the question of jurisdiction. Hence Jayamma was required to re-present the plaint before the proper court. But Smt. Jayamma did not pursue the matter as she had an intention to sell the property. Hence Jayamma was required to re-present the plaint before the proper court. But Smt. Jayamma did not pursue the matter as she had an intention to sell the property. c) On 21.1.2008, she sold the schedule property in favour of three persons, viz., Raveesh, T.K. Nagaraj and Paramesh and the same is registered in the office of the Sub Registrar at Rajajinagar. Later on Raveesh and the legal heirs of deceased Paramesh have executed a registered release deed in respect of their share on 19.10.2012 relinquishing their right in favour of T.K. Nagaraj. Thus T.K. Nagaraj is stated to have become the absolute owner of the schedule property. d) According to the plaintiff, the tenancy of Pankaj Kothari under the registered owner-Smt. Jayamma has stood attorned in his favour. He had called upon the defendant-Pankaj Kothari to vacate and hand over vacant possession of the schedule premises by getting a legal notice issued through registered post on 8.11.2012 and the same was duly served and acknowledgment bearing his signature was returned on 14.11.2012. The tenancy is stated to have been lawfully terminated by the plaintiff through the above notice. In spite of receipt of the notice, the defendant did not come forward to vacate and hand over vacant possession of the schedule premises, and as such he was forced to file a suit for eviction before the Small Causes Court. e) The defendant has filed detailed written statement on 13.3.2014 admitting his earlier tenancy under Smt. Jayamma, but has denied the very title set up by the plaintiff. The averment that Jayamma has sold the schedule property in favour of three persons inclusive of the present plaintiff and two others who have released their right in favour of T.K. Nagaraj has been specifically denied. According to him, there is no relationship of landlord and tenant between himself and T.K. Nagaraj and therefore the petition is not maintainable either in law or on facts. The alleged sale of the schedule property by Smt. Jayamma is stated to be a sham transaction and the release deed dated 19.10.2012 is also stated to be a sham transaction. It is his case that the plaintiff had never intimated him at any point of time about the purchase of the suit schedule property from Smt. Jayamma. According to him, rent is being paid to Jayamma and she still continues to be the owner. It is his case that the plaintiff had never intimated him at any point of time about the purchase of the suit schedule property from Smt. Jayamma. According to him, rent is being paid to Jayamma and she still continues to be the owner. Thus he has requested the court to dismiss the suit. 5. Parties had already adduced evidence. In the meanwhile, Jayamma chose to file an application under Order I Rule 10(2), C.P.C. before the trial court in S.C.1845/12 requesting the court to permit her to come as 2nd defendant in the said case since she is a necessary party on the ground of not having executed any sale deed in favour of T.K. Nagaraj and others. The said application came to be dismissed on 18.12.2014 by the court as against which W.P.2559/15 (GM-CPC) was filed before this court by Jayamma and the said petition has been dismissed after contest by order dated 28.4.2015. 6. When the case was set down for hearing arguments on merits, an application under Section 151, C.P.C. read with Section 8(1) of the Small Causes Courts Act, 1964, came to be filed requesting the court to dismiss the suit as the Small Causes Court does not have any jurisdiction to entertain this suit and to return the plaint so to be presented before the appropriate court. The said application came to be objected to by the plaintiff and the same has been ultimately rejected. Hence the defendant has approached this court. 7. Learned counsel for the petitioner, Smt. Jayna Kothari has relied upon a Full Bench decision of this court in the case of ABDUL WAJID .v. A.S.ONKARAPPA (ILR 2011 KAR 229) to contend that when a tenant denies title or takes up another plea which gives rise to an issue other than the one mentioned in clause (c) of Article 4, the Small Causes Court has to return the plaint for presentation before the civil court for adjudication. It is further argued that if the right of the plaintiff and the relief claimed by him in a Court of Small Causes depends upon the proof or disproof of title to immovable property or other title in the light of the contentions raised by the defendant in his written statement, certainly the court acting under Section 16 of the Karnataka Small Causes Court has to order return of plaint for presentation to the proper court. 8. Learned counsel has further argued that in the present suit, not merely an issue for the determination of rights of the lessee is involved, but also the very jural relationship of landlord and tenant is in serious dispute and the defendant has emphatically denied the title of the plaintiff. She has relied upon paragraphs 113 and 114 of the decision rendered in the case of ABDUL WAJID. 9. Learned counsel representing the plaintiff, Mr. R.B. Sadashivappa has supported the impugned order on the ground that the defendant cannot deny the title of the plaintiff because he has become the absolute owner of the schedule property by virtue of the sale deed executed by the original owner-Smt. Jayamma in his favour and two others and the other two joint purchasers having released their interest in his favour. It is his case that when once tenancy under Jayamma is admitted, the moment Jayamma conveys the property to anybody, the tenancy automatically gets attorned in favour of the alienee and therefore, the contention of the defendant that the Small Causes Court does not have jurisdiction to try the suit is untenable. He has further submitted that the defendant has been dragging on the proceedings on one pretext or the other by filing application after application and this is evident from the order passed in W.P.2559/15 disposed of on 28.4.2015. 10. After going through the records and hearing the arguments of the learned counsel for the parties, the following points arise for the consideration of this court: Whether the impugned order is liable to be interfered with by this court with the supervisory jurisdiction vested under Article 227 of the Constitution of India? REASONS 11. Section 8 of the Karnataka Small Causes Courts Act, 1964, speaks about cognizance of suits by the Small Causes Courts and the same is found in Chapter III. Section 8 is reproduced below: 8. Cognizance of suits by Courts of Small Causes. REASONS 11. Section 8 of the Karnataka Small Causes Courts Act, 1964, speaks about cognizance of suits by the Small Causes Courts and the same is found in Chapter III. Section 8 is reproduced below: 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 being in force, all suits of a civil nature of which the value does not exceed five hundred 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 [twenty five thousand rupees] shall be cognizable by a Court of Small Causes mentioned in the notification. As per sub-section (1) of Section 8, the schedule appended to the Act in question will have to be looked into in order to ascertain the nature of suits and proceedings in respect of which cognizance should not be taken by the Court of Small Causes in the state of Karnataka. The schedule to Section 8 speaks about suits excepted by the Small Causes Courts. The Schedule to Section 8 has 15 entries and entry no.4(a) to (c) is relevant for the purpose of this case and the same is extracted below. Schedule: Suits excepted from the cognizance of Court of Small Causes (1) … (2) … (3) … (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. 12. 12. Relying upon the schedule appended to the Small Causes Courts Act, learned counsel, Smt. Jayna Kothari has argued that in the present case, the issue involved is not as to whether the lease has been determined by efflux of time or has been determined by notice in accordance with law for the time being in force in spite of such lease, or permission to occupy has been withdrawn; but a serious dispute is raised about the very competency of the plaintiff to file an eviction suit against the defendant in the light of the earlier owner-Smt. Jayamma herself disputing title. 13. The defendant has not denied his induction as tenant by the earlier owner-Jayamma. He admits that he was inducted into the schedule property by Smt. Jayamma in the year 1988 and the agreement of lease is relied upon to that effect. In paragraph 99 of the Full Bench decision of this court rendered in the case of ABDUL WAJID (supra), it is held as follows: ‘However, mere denial of jural relationship of landlord and tenant by the defendant in his written statement though the lease is evidenced by a document, by itself cannot be a ground to hold that the Court of Small Causes has no jurisdiction. In such an event, as an incidental question, the court has to find out whether the property had been let or permitted to be occupied by a written instrument or orally as stated in clause (a) and for that purpose, the plaintiff has to be afforded an opportunity to place evidence.’ 14. In the case of TEJ BHAN MADAN .v. II ADDITIONAL DISTRICT JUDGE reported in AIR 1988 SC 1413 , the Hon’ble Supreme Court has held that a tenant cannot deny the very title of the person who inducted him as a tenant, or of the person in whose favour the ownership is transferred. Thus the tenant, according to the Hon’ble apex court, will be inhibited to make such denial because of attornment of tenancy in favour of the alienee. Following observation of the Hon’ble Apex Court in the case of TEJ BHAN MADAN is relevant: ‘There can be a denial of the title by the tenant of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of jus tertii. Following observation of the Hon’ble Apex Court in the case of TEJ BHAN MADAN is relevant: ‘There can be a denial of the title by the tenant of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of jus tertii. But the implication of the ground on which the denial of title was made was that if the tenant-appellant could not have denied the vendor’s title by virtue of the inhibitions of the attornment, he could not question the vendee’s (respondent no.3) title either. The tenant did himself no service by this stand. What he did, amounted to a denial of title. The tenant-appellant was preclude from doing so n the general principles of estoppel between landlord and tenant. The principle in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. The law as to the estoppel of a tenant under Section 116 of the Evidence Act is a recognition, and statutory assimilation, of the equitable principles underlying estoppel in relation to tenants. The section is not exhaustive of the law of estoppel. The section inter alia, predicates that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property.’ 15. In the present case, the plaintiff has chosen to file the suit only after issuing legal notice terminating the tenancy of the defendant. The fact that notice was got issued by the plaintiff terminating her tenancy is not in dispute and a copy of the said notice is made available on record. What is further held in the case of TEJ BHAN (supra) is that the tenant can deny title of the landlord without renouncing his character. What is further held is that the tenant cannot deny the previous title by virtue of the inhibitions of the attornment, i.e. he cannot question the title of the vendee in view of vendor’s title being admitted by the tenant. What is further held is that the tenant cannot deny the previous title by virtue of the inhibitions of the attornment, i.e. he cannot question the title of the vendee in view of vendor’s title being admitted by the tenant. In the present case also, Smt. Jayamma chose to execute a regular sale deed in favour of T.K. Nagaraj and two others through a registered sale deed and the two co-purchasers have released their right in favour of Nagaraj through a registered release deed and it is also part of the evidence placed on record. 16. The pith and substance of the decision rendered by the Hon’ble apex court in the case of TEJ BHAN is that if there is an attornment by the original owner relating to tenancy, the tenant cannot question title of the vendee who has stepped into the shoes of the vendor, i.e. erstwhile landlord of the tenant. The decision in the case of TEJ BHAN has been relied upon by this court in the case of POPULAR AUTOMOBILES .v. N.VEERASWAMY (ILR 1989 KAR 1555). Applying the decision rendered in the case of TEJ BHAN, this court has held that the petitioner therein is deemed to be the tenant of the respondent. It is only after issuance of legal notice as contemplated under Section 106 of the Transfer of Property Act, the plaintiffs chose to file the suit in O.S.1845/12. 17. The legal notice is dated 8.11.2012 and it was served on the defendant and the same is also marked as Ex.P6 before the trial court. As against it, a reply was also issued on 3.12.2012 by the defendant. What is mentioned in the reply is that the lease has not been attorned in favour of T.K. Nagaraj and there is no relationship of landlord and tenant between the defendant and the plaintiff. This assertion is untenable in the light of the specific observation made by the Hon’ble apex court in the case of TEJ BHAN. 18. Just because the tenant has raised a dispute about the very attornment of tenancy in favour of the plaintiff, it does not become a contentious issue to keep the present case out of the purview of the Court of Small Causes in terms of Section 8 of the Act. Therefore the decision rendered in the case of ABDUL WAJID is not helpful to the defendant-petitioner in any manner. Therefore the decision rendered in the case of ABDUL WAJID is not helpful to the defendant-petitioner in any manner. On the other hand it is helpful to the case of the defendant. 19. It is to be seen that Smt. Jayamma had filed an application under Order I Rule 10(2), C.P.C. before the trial court in O.S.1845/12 with a request to implead her as 2nd defendant on the ground of having challenged the alienation made by her in favour of T.K. Nagaraj and two others. Admittedly the suit in P.Misc. 24/14 is not yet disposed of in view of the pendency of the application under Order XXXIX Rules 1 and 2, C.P.C. The said petition was filed in 2014, i.e., two years after the suit was filed in O.S.1845/12 by Sri T.K. Nagaraj. In fact the defendant had no objection to allow the said application and permit Jayamma to come on record as 2nd defendant; but the trial court chose to dismiss the application filed under Order I Rule 10 (2), C.P.C., as against which Jayamma had approached this court in W.P.2559/15 under Article 227 of the Constitution of India which was also dismissed after contest on 28.4.2015. 20. Some of the observations made in W.P.2559/15 about the conduct of the defendant in dragging the case is relevant. Paragraphs 4 to 6 of the decision rendered on 28.4.2015 are relevant and they are extracted below: 4. The material on record discloses that the applicant was the absolute owner of the plaint schedule property and filed S.C. No. 2151/2003 against the defendant for ejectment. It came to be decreed but the same was set aside by this Court in CRP No. 802/2006 and the plaint was ordered to be returned to the applicant for presenting it before the proper Court. Thereafter, the applicant sold the schedule property to the plaintiff under a registered sale deed dated 21.1.2008; she acknowledges receipt of Rs.34,00,000/- under the sale deed. However, her grievance is, balance sale consideration is not paid. In fact, the applicant has filed P. Misc.No.22/2014 challenging the sale deed dated 21.1.2008. 5. In the meanwhile, the purchaser filed the suit for ejectment against the tenant on 12.12.2012. However, her grievance is, balance sale consideration is not paid. In fact, the applicant has filed P. Misc.No.22/2014 challenging the sale deed dated 21.1.2008. 5. In the meanwhile, the purchaser filed the suit for ejectment against the tenant on 12.12.2012. As pointed out by the trial Court, 50 times the case was adjourned and, on the 51st hearing this application for impleadment is filed and two years after the filing of the suit, the sale deed is challenged. In this factual background, as long as the sale deed executed by the applicant in favour of the plaintiff is in force, the plaintiff is the absolute owner of the property; applicant has no interest in the said property. By operation of law, the tenancy stands attorned. Defendant who was admittedly the tenant under the applicant becomes a tenant under the plaintiff. 6. Therefore, merely because the defendant points out and contends that the applicant is the landlord that does not enable the applicant to be impleaded as a party. For any party to get impleaded in a suit, he must have some interest in the subject matter of the suit. Once the impleading applicant has executed a registered sale deed conveying absolute title to the plaintiff, until the sale deed is annulled, she cannot claim any right over the said property. In that view of the matter, the applicant is neither a necessary nor a proper party to the proceedings. The matter is of the year 2012. The entire evidence is already over. The defendant did not make any application in terms of Section 8 of the Karnataka Small Causes Courts Act at the earliest point of time if he had really intended to question the very jurisdiction of the Small Causes Court. He has taken innumerable adjournments and the application under Order I Rule 10, C.P.C. came to be filed after taking as many as 50 adjournments. The conduct of the defendant is apparent. He is trying to drag on the proceedings on one pretext or the other and that needs to be strongly deprecated. 21. Viewed from any angle, the impugned order passed on 29.11.2013 by the Small Causes Court is perfectly justified. No jurisdictional error is forthcoming to invoke the supervisory jurisdiction vested in this court under Article 227 of the Constitution of India. Accordingly the point framed is answered in the negative. 22. 21. Viewed from any angle, the impugned order passed on 29.11.2013 by the Small Causes Court is perfectly justified. No jurisdictional error is forthcoming to invoke the supervisory jurisdiction vested in this court under Article 227 of the Constitution of India. Accordingly the point framed is answered in the negative. 22. In the result, the following order is passed: ORDER In the light of the conduct of the defendant, the petition is dismissed with exemplary costs of Rs.15,000/- (rupees fifteen thousand only) payable by the petitioner-defendant. Out of this, a sum of Rs.5,000/- (rupees five thousand only) shall be paid to the High Court Legal Services Committee, Bengaluru and the remaining Rs.10,000/- shall be paid to the plaintiff on the next date of hearing before the trial court, .without fail. Payment of cost is condition precedent for participating in the proceedings before the trial court, lest, the right to lead evidence, if any, or to advance arguments on merits by the defendant would stand forfeited. Send a copy of this order at the earliest to the trial court.