Lakshmipathy vs Kodandarama

S. Sujatha, J.—These petitions are filed by the plaintiff/petitioner challenging the orders dated 20.6.2012 and 1.3.2013 passed in I.A. Nos. 6 and 7 in S.C. 117/2011 on the file of the Chief Judge, Court of Small Causes at Bangalore.

The brief facts of the case:

The petitioner and respondent are the brothers, both sons of late H. Muniyappa who died on 22.11.2002. It is the case of the petitioner that as per partition deed dated 6.6.2001, he has inherited the immovable property situated at Singapura village and had built two houses on the land allotted to him in the partition and one house was let out for rent to the respondent in August 2008 on a monthly rent of Rs. 3250/-. The tenancy was oral. Due to some differences that cropped up among the brothers, the respondent stopped paying the rent and filed R.A. No. 230/2007 before the revenue authorities and instituted O.S. 118/2012 before the City Civil Court for relief of partition and declaration. In these circumstances, the petitioner filed O.S. No. 6491/2010 before the XXV Addl. City Civil Judge at Bangalore seeking for ejectment and arrears of rent and damages. The learned Civil Judge by order dated 18.4.2011 transferred the suit to the Court of Small Causes, Bangalore following the Full Bench Judgment of this Court reported in Abdul Wajid Vs. A.S. Onkarappa, . 3. The said transferred suit was renumbered as S.C. 1171/2011 before the Court of Chief Judge, Court of Small Causes, Bangalore and in the said proceedings, the respondents appeared and filed an application - I.A. No. 6 under Order VII Rule 11(d) read with Sections 132 and 133 of the Karnataka Land Reforms Act seeking for rejectment of plaint which was resisted by the petitioner. The learned Small Causes Judge after hearing the parties rejected I.A. No. 6 and directed the registry to return the plaint to the plaintiff/petitioner to present the case before competent Court having jurisdiction by order dated 20.6.2012. Petitioner subsequently filed an application under Section 151 of CPC to recall the order dated 20.6.2012 insofar as ordering the return of plaint. This Application was also rejected by the learned Small Causes Judge by order dated 1.3.2013. These two impugned orders are assailed by the petitioner in these petitions.

Learned counsel Sri K. Shrihari appearing for the petitioner vehemently argued that following the Full Bench Judgment of this Court cited supra City Civil Court had transferred the suit to the Court of Small Causes, Bangalore and as such, the Small Causes Judge exceeded the jurisdiction in returning the plaint to present before the Competent Court having jurisdiction. The learned Civil Judge having arrived at a conclusion on the jurisdictional aspect had transferred the suit to the Small Causes Court which was competent to adjudicate the matter. In such an event, no power was vested with the Small Causes Judge to examine the competency/jurisdiction of the Small Causes Court to take cognizance of suit filed by the petitioner and exercise of such powers was unwarranted. It is further argued that in deciding the jurisdiction of the Court under the provisions of the Karnataka Small Causes Court Act, 1964 (herein after referred to as ''KSCC Act'' for brevity). It is only the plaint averments which are necessarily to be looked upon and not the defence taken by the opposite party in the written statement.

In this background of the case and on the arguments advanced by the learned counsel for the petitioner, the questions that arise for consideration before this Court are:

(1) Whether plaint averments alone is relevant in deciding the jurisdiction of the Court to adjudicate the dispute involved in the matter under the provisions of KSCC Act or the defence taken by the respondent/defendant also would be considered?

(2) Whether the Small Causes Judge was right in returning the plaint to present it before the competent Court having jurisdiction invoking the provisions of Section 16 of KSCC Act?

These issues are no longer res integra in view of the settled principles of law declared by the Full Bench decision cited supra which observes thus;

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 rise 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 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. 6. It is categorically held that jurisdiction of the Court shall be generally determined on the basis of averments made in the plaint but, 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 depends on the contentions raised in the written statement and where the relationship of landlord and tenant giving rise to issues other than the one mentioned in Clause (c) of Article 4 of the KSCC Act, is present, it is incumbent on the Small Causes Court acting under section 16 of KSCC Act to return the plaint for presentation before the Civil Court for adjudication.

Section. 16 of the KSCC Act reads thus;

(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. The respondent denying the jural relationship of landlord and tenant filed an application for rejectment of plaint adverting that the parties to the suit are brothers and the entire land bearing Sy. No. 122 measuring 3 acres 11 guntas of Singapura village originally belonged to the father of the parties, late H. Muniyappa who died on 22.11.2002, there was no partition among the joint family members and the defendant is in possession and enjoyment of the suit schedule property from long time, alleged that the plaintiff behind back of the defendant got obtained mutation entry in his favour in respect of the suit schedule property Challenging the same, RA No. 230/2010 was filed by the defendant before the Revenue Authorities and the same is pending besides, instituting O.S. No. 118/2012 before the City Civil Judge, Bangalore for relict of partition and declaration and the present suit schedule property forms part of the suit schedule property in the said O.S. No. 118/2012.

No agreement of tenancy is produced by the plaintiff/petitioner to establish the jural relationship of landlord and tenant between the parties. An examination of the plaint averments vis-a-vis the defence taken by the respondent apparently indicates the dispute of title between the parties and more particularly, the parties being brothers. Thus, it is not the case of mere denial of jural relationship of landlord and tenant. In such circumstances, certainly the Court as per Section 16 of the KSCC Act has to order return of plaint for presentation to proper Court. At the time of institution of the O.S. No. 6491/2010 before the City Civil Judge, there was no occasion for the Court to examine the jural relationship of landlord and tenant between the parties. It is only on the application filed by the respondent seeking for rejection of the plaint on the grounds already discussed above, Small Causes Court examined the issue of jurisdiction with reference to the Full Bench Judgment of this Court. After being satisfied that the dispute revolves round the issue of title and O.S. No. 118/2012 filed by the respondent for partition and other reliefs against the petitioner and others is pending consideration before the City Civil Court, Bangalore in which the suit schedule property is also included, the impugned order dated 20.6.2012 is passed.

As no tenable grounds were made, the Small Causes Court is right in rejecting the application filed by the petitioner to recall the order dated 20.06.2012.

In the circumstances, the Small Causes Court exercising the powers under Section 16 of the KSCC Act is justified in returning the plaint to present it before the competent Court having jurisdiction which cannot be found fault with.

Accordingly, writ petitions are dismissed.