Kathal Sab vs Ponnappa

H.G. Ramesh, J.—This second appeal is by defendant No. 1. By the impugned judgment the first Appellate Court has affirmed the judgment of the Trial Court directing the appellant and his two brothers (defendant Nos. 2 and 3) to vacate and to deliver vacant possession of the suit premises (shop premises) measuring 11 ft. x 16.5 ft. to the plaintiffs. Concurrent findings by both the Courts. The claim for possession was based on termination of the lease.

I have heard the learned counsel appearing for the appellant and respondent Nos. 1 to 3 (plaintiffs) and perused the judgments of the two Courts below.

The plaintiffs filed the suit in CS. No. 931/2008 before the Court of the III Additional Civil Judge, Belgaum, for possession of the suit property which is a shop premises measuring 11 ft. X 16.5 ft. on the basis of termination of the lease. The Trial Court decreed the suit by directing the appellant and his two brothers (defendant Nos. 2 and 3) to deliver vacant possession of the suit property (shop premises) measuring 11 ft. x 16.5 ft. to the plaintiffs and to pay mesne profits.

Only the appellant herein carried the matter further to the first Appellate Court. The first Appellate Court, on reconsideration of the matter, affirmed the aforesaid judgment and decree of the Trial Court. Learned counsel for the appellant submitted that the appellant is in exclusive possession of the suit premises.

The sole contention urged by the learned counsel for the appellant-tenant is that the Trial Court being a regular civil court, had no jurisdiction to entertain the suit in view of Sections 8 and 9 read with Article 4 of the Schedule to the Karnataka Small Cause Courts Act, 1964 (''the Act''). He submitted that the allegations made in the plaint would clearly show that the suit was cognizable by the Court of Small Causes under the Act as per Section 9 thereof. In support of his submission, he relied on a judgment of the Supreme Court in Abdulla Bin Ali and Others Vs. Galappa and Others, and specifically referred to para. 5 thereof.

Learned counsel appearing for the plaintiffs supported the judgments of the two Courts below by relying on Article 4 of the Schedule to the Act and Section 16 of the Act.

To examine the contention that the Trial Court had no jurisdiction to entertain the suit, it is relevant to refer to the following provisions of the Act:

" S. 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 one lakh rupees in Bangalore city, twenty five thousand rupees in other places shall be cognizable by a Court of Small'' Causes:

S. 9. Exclusive jurisdiction of Courts of Small Causes.--Save as expressly provided by this Act or, by any other law for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction, within-the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.

S. 10......................

S. 16. Return of plaint in suits involving question of title.--(1) Notwithstanding anything in the foregoing provisions of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes, depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may, at any stage of the proceedings, return the plaint to be presented to a Court having jurisdiction to determine the title.

(2) When a Court returns the plaint under sub-section (1), it shall comply with the provisions of sub-rule (2) of rule 10 of Order VII of the Code, and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Limitation Act, 1963, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.

S. 17............................

.................................

Schedule

Suits Excepted From The Cognizance OF COURT OF SMALL CAUSES (See Section 8)

(1) xxxxxxx

(2) xxxxxxx

(3) xxxxxxx

(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;"

As could be seen from Article 4 of the Schedule referred to above, a Court of small causes can entertain a suit for ejectment where the only substantial issue arising for 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. In this context, it is relevant to refer to the following issues framed by the Trial Court in the suit as arising for decision:

"1. Whether the plaintiffs prove that they are the absolute owners of the suit property?

Whether the plaintiffs prove that there exists jural relationship of Landlord and tenant between the plaintiffs and the defendants?

Whether the plaintiffs further prove that there is valid termination of tenancy and proper notice of termination is issued to the defendants?

Whether the defendants prove that they are in possession of the suit property by way of oral sale agreement?

Whether the suit is not maintainable in view of Karnataka Rent Act?

Whether the court fee paid is proper?

Whether the plaintiffs are entitled for the reliefs sought for?

What order or decree?"

(underlining supplied)

The underlined two issues related to the title to the suit property and as to whether the defendants-tenants were in possession of the suit property pursuant to the oral sale agreement alleged by them. This would clearly show that there were other substantial issues that fell for determination in the suit in addition to the issue referred to in clause (c) of Article 4 of the Schedule to the Act referred to above. Hence, it is obvious that, even if the suit had been filed before the Court of Small Causes, the said Court would have returned the plaint, as laid down in S. 16 of the Act, for its presentation before the jurisdictional civil Court. It is also relevant to state that when the plaintiffs presented the plaint before the regular Civil Court, it was in accordance with the law laid down by a Division Bench of this Court in Sarojamma Vs. K.M. Venkatesh, . This is fairly not disputed by the learned counsel for the appellant. Subsequently, a Full Bench of this Court in Abdul Wajid Vs. A.S. Onkarappa, held that the interpretation placed by the Division Bench on Article 4 of the schedule to the Act was not correct.

The contention re jurisdiction urged in this appeal was also urged before the first Appellate Court and it has been considered in detail by the first Appellate Court in the light of the Full Bench decision of this Court in Abdul Wajid Vs. A.S. Onkarappa, . It is relevant to refer to the following I reasoning of the first Appellate Court re jurisdiction:

"18.............In view of the principle laid down in 2011 (4) KLJ 414 (FB) (Abdul Wajid vs. A.S. Onkarappa), normally the case of this nature comes within the jurisdiction of Small Cause Court. But the defendants have denied the relationship of landlord and tenant and have pleaded the oral agreement of sale and even reply notice demanded for execution of the sale deed. The denial of the relationship is not a mere denial. The learned counsel for the appellant has also relied on the above referred judgment 2011 (4) KLJ 414 (FB) and has contended that the suit of the plaintiff comes within the jurisdiction of Small Cause court. In para. 98 of the above said judgment it is held as under:

"There is one other aspect which requires to be clarified. In couple of decisions it has been observed that though the general principle is that the jurisdiction of the court shall be determined by the averment in the plaint, Article 4 of KSCC Act makes a departure from this general principle and the jurisdiction of the Court of Small Causes to try the suit for ejectment is made dependent on the contentions raised in the written statement and at the Will of the defendant and in the written statement if the defendant were to deny the relationship of landlord and tenant, denies the title or take any other plea which gives raise to 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. No doubt, as per clause (c) of Article 4 the only substantial issue to be considered is whether the lease has been determined by efflux of time or has been determined by a notice, or the permission to occupy has been withdrawn. If the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend 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 KSCC Act has to order return of plaint for presentation to proper Court. However, mere denial of jural relationship of landlord and tenant by the defendant in his written statement though the lease is evidenced by document, by itself cannot be a ground to hold that the Court of Small Causes has no jurisdiction. In such event, as an incidental question the Court has to find out whether the property had been let under lease 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 opportunity to place evidence."

As per the principle laid down in the above decision in general, the jurisdiction of the court shall be determined by considering the averment in the plaint, but Article 4 of Karnataka Small Cause Courts Act makes a departure from this general principle and the jurisdiction of the court the Small Cause to try the suit for ejectment made depending on the contention raised in the written statement and at the will of the defendant. If the defendants have denied the relationship of landlord and tenant and denied the title or take any other plea, which plea give rise the issue, other than one mentioned in Clause (c) Article 4 of Small Cause Court, the Small Cause court has to return the plaint for presentation before the Civil court for adjudication. Here, in this case, the lease alleged by the plaintiff is oral lease. The defendant has denied the relationship of landlord and tenant. Though denial of the title of the plaintiff is mere denial for the sake of denial, considering the fact that the defendants admit that once they were put in possession as a tenant under the father of the plaintiffs, the denial of the plaintiffs title is untenable. But denial of the relationship of landlord and tenant by the defendants is not a mere denial. They have set up the plea that they are in possession of the suit property on the basis of the oral agreement of sale. The oral agreement of sale is recognized under law. When the defendant has taken such plea of oral agreement of sale, that plea should have been adjudicated by the civil court, adjudication of such a plea is beyond the jurisdiction of Small Cause Court. Assuming that the plaintiff has filed this suit before the Small Cause Court, after appearance of the defendants, if the defendant has denied the relationship of landlord and tenant and set up plea of oral agreement of sale, the jurisdiction of the Small Cause court is ousted, the Small Cause court should have returned the plaint for presentation before the Civil Court. The determination of oral agreement of sale is out of the purview of Sec 4 of KSCC Act. In view of Section 4 of the KSCC Act the principle laid down in the decision referred by the learned counsel for the appellant reported in Abdulla Bin Ali and Others Vs. Galappa and Others, is not applicable to the case on hand. The facts involved in the above said case is that the agricultural land was involved in the said case, the relationship of landlord and tenant was involved, here, in this case it is the suit for eviction of the non-residential premises. Therefore, the principle laid down in the above said decision is not applicable to the present case on hand. As per the principle laid down in para. 98 of Abdul Wajid vs. A.S. Onkarappa (FB) case, the jurisdiction of the Small Cause court is ousted in view of the denial of the relationship of landlord and tenant by the defendant and set up a plea of oral agreement of sale. Therefore, the contention of the learned counsel for the appellant that the suit of the plaintiff is not maintainable in view of KSCC Act is not tenable. Accordingly, point No. 1 is answered in the negative."

(underlining supplied)

I find no legal infirmity in the above reasoning of the first Appellate Court. It is in conformity with the law laid down by a Full Bench of this Court in Abdul Wajid Vs. A.S. Onkarappa, which is relied upon by the first Appellate Court. The judgment of the Supreme Court Abdulla Bin Ali and Others Vs. Galappa and Others, relied on by the learned counsel for the appellant has no application to the facts of the present case as rightly held by the first Appellate Court as the jurisdiction of the Court of Small Causes depends on the issues that would arise for determination as held by a Full Bench of this Court in Abdul Wajid referred to above. As could be seen from Section 16 of the Act referred to above, if any question with regard to title to a immovable property requires to be determined in the suit, the Court of small causes shall have to return the plaint for presentation to a Court having jurisdiction to determine the title. As could be seen from the issues in the suit referred to above, title relating to the suit property fell for determination in the suit.

Having regard to the facts of the case, the view taken by the first Appellate Court that the Court of Small Causes had no jurisdiction to adjudicate the suit is correct in law as the issue that fell for determination in the suit was not only relating to determination of the lease, but also relating to title to the suit property. Accordingly, the contention regarding jurisdiction is devoid of merit. No ground to admit the appeal. The appeal is accordingly dismissed.

At this stage, learned counsel for the appellant prays for time to the appellant to vacate the suit premises. As the suit is of the year 2008, there is no ground to grant any further time to vacate the suit premises. However, as it would cause hardship to the appellant to suddenly vacate the premises, I deem it appropriate to grant three months'' time from today to the appellant-tenant to voluntarily vacate and to deliver vacant possession of the suit premises to respondent Nos. 1 to 3 subject to condition that the appellant files an undertaking, by way of an affidavit, before the Trial Court within six weeks from today to the effect that he will voluntarily vacate and deliver vacant possession of the suit premises to respondent Nos. 1 to 3, within three months from today. If the appellant fails to file the undertaking as aforesaid, within six weeks from today, it shall be deemed that no time had been granted by this Court to vacate the suit premises and, in that event, the plaintiffs are at liberty to execute the decree impugned herein.

Appeal dismissed.