ORDER
1. This petition is listed for admission with the consent of the learned counsel appearing on both the sides, the petition is heard on merits and disposed of by this order.
2. The defendant in O.S. No. 297/87 on the file of the learned Second Additional Civil Judge, Mysore, is the petitioner herein. He has called in question the judgment and decree dated 9-12-1993 passed by the learned Second Additional Civil Judge, Mysore, in O.S. No. 292/ 87 instituted under Section 6 of the Specific Relief Act, 1963 (for short ‘the Act’).
3. The plaintiffs-respondents instituted the suit against the petitioner for possession of the premises bearing No. 1739 (New No. 93), Sayyaji Rao Road, Mysore, and for damage for use and occupation of the same. It was contended by the plaintiffs that they are the owners of the suit property and they were in possession of the said property till they were dispossessed by the defendant without their consent, otherwise than in due course of law. It is the cast of the plaintiffs that the defendant was carrying on the business in the sale of hoseiry on the foot-path situated in front of the suit shop, and when the plaintiffs’ father closed the business temporarily in the suit shop, the defendant sought permission of the plaintiffs’, father to take electricity through a detachable electric connection from inside the suit premises to carry on the business during nights also and the father of the plaintiffs on humanitarian consideration allowed the defendant that said facility. The plaintiffs further state that after some time the defendant instituted a suit against them alleging that he is a tenant of the suit shop am! obtained an order of temporary injunction: and that on the strength of the said injunction. he broke open the lock of the suit shop and entered the shop premises. Thus the defendant dispossessed the plaintiffs of the suit shop, without their consent, otherwise than in due course of law. The plaintiffs have, therefore, instituted the suit for possession of the suit shop under Section 6 of the Act.
4. The defendant having entered appearanee filed his written statement denying the case of the plaintiffs and contending that he has been a tenant in respect of the suit shop.
5. On the basis of the aforesaid pleadings, the learned Civil Judge framed four issues including the additional issue and they reads as follows :
(1) Whether plaintiffs are entitled for possession of the suit schedule property ?
(2) Whether the plaintiffs are entitled for damages for loss of profits, for use and occupation at the rate of Rs. 10.000/- per month as claimed by them ?
(3) To what relief plaintiffs are entitled ?
The additional issue reads as under :
Whether the defendant proves that he is the tenant in respect of the suit properly as pleaded by him in his written statement?
6. The learned Civil Judge, after reeording the evidence has answered Issue Nos. 1 and 2 in the affirmative. However he postponed to grant decree for damages for being taken in final decree proceedings and answer the additional issue in the negative.
7. Sri P. Shivanna, the learned counsel appearing for the petitioner-defendant, would argue that the approach of the learned Civil Judge to the case is erroneous, as the learned Civil Judge has put the burden of proving the case of the plaintiffs on the defendant contrary to the provisions of Section 6 of the Act. In this context he read to me the relevant portion from the judgment of the learned Civil Judge.
8. Sri Yoganarasimha. the learned counsel appearing for the respondents-plaintiffs, submits that in view of sub-section (4) of Section 6 of the Act, the revision is not maintainable. He, therefore, prays for rejection of the revision petition on the ground of maintainability.
9. In view of the aforesaid contentions, it becomes necessary for me to decide first whether the revision petition is maintainable against the judgment and decree passed in a suit under Section 6 of the Act before considering the case on merits. Section 6 of the Act reads as follows :
“6. (I) If any person is dispossessed wihtout his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section -shall be brought –
(i) after the expiry of six months from the date of dispossession; or
(ii) Against the Government.
(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”
Placing reliance on sub-sections (3) and (4) of the aforesaid provision, Sri Yoganarasimha, the learned Counsel for the respondents, submits that neither an appeal nor a review is allowed against the order or decree made in a suit filed under Sec. 6 of the Act, and a right is given to any person to sue to establish his title to such properly and recover possession thereof which has been ordered to be delivered to the suitor. The provision of subsection (4) of Section 6 of the Act, according to Sri Yoganarasimha, the learned counsel for respondents, provides for an alternate remedy to an unsuccessful party, by way of instituting a suit for declaration of title and for possession and such suit being more efficacious and effective, the revision is avoided by necessary implication.
10. I am unable to persuade myself to agree with the contention of Sri Yoganarasimha, the learned counsel for the respondents. It is true that sub-section (3) of Section 6 of the Act prohibits the appeals as well as the review against the order or decree made in the suit filed under Section 6 of the Act. It is further true that a right is given particularly to the unsuccessful party in the suit for instituting a suit for declaration of his title and for possession, as the suit instituted under Section 6 of the Act would not necessarily deal with the title but deals only with possession of the plaintiff of the immoveable property arid his dispossession therefrom without his consent. This does not mean that a revision under Section 115, C.P.C. is prohibited where the order ordecree is made in violation of Section 6 of the Act.
11. Section 9 of the Specific Relief Act, 1877 (for short the ‘old Act’) is a provision analogous to Section 6 of the Act. Dealing with Section 9 of the old Act, the High Court of Pepsu in the case of Gobind Ram Jamna Das v. Mst. Mewa, AIR 1953 Pepsu 188 has held as follows (at p. 190 of AIR) :
“5. The learned counsel for the respondents urges that this Court is not competent to interfere in revision. I see no force in his contention. In this case the trial Court dismissed the suit on the ground that the plaintiff not being in possession was not competent to institute the suit. If the plaintiff is entitled, as he is in my opinion to institute such a suit under Section 9 of the Act, the finding of the trial Court to the contrary deprives him of his right, to relief provided by S. 9 of the Act and the trial Court thus failed to exercise jurisdiction which is ought to have exercised. This Court, therefore, is competent to interfere in such circumstances. S. 9 itself shuts out the remedy by way of appeal or review. If the intention of the legislature was to shut out a remedy by way of revision also it could have been similarly and specifically mentioned.”
In Neyveli Lignite Corporation Ltd. v. K. S. Narayana lyer, dealing with the scope of S. 9 of the old Act, the High Court of Madras has held as follows (at p. 127 of AIR):
“22. The only other question that remains for consideration is whether this Court can under its powers of revision, interfere with the decree passed in the present case. Normally where an alternative remedy by way of suit is available, this Court seldom interfere in revision, but in the present case, if that course were to be adopted it would mean that the respondent who has no title to the property at all, should be allowed to go back and to squat on the property and be there so long as he is capable of delaying any suit that might be filed by the Corporation to evict him. We therefore consider that in the interests of justice this Civil revision petition should be entertained.”
This Court in Sri Ramakrishna Suvarna v. Smt. Shashi Hengsu, 1988 (3) Kant LJ 139, though not expressed any opinion as to the maintainability of the revision petition, has however entertained a revision petition under S. 115, C.P.C. against the judgment and decree passed in a suit filed under S. 6 of the Act.
12. In view of the aforesaid rulings, it is clear that, though a revision petition under S. 115 is seldom allowed where an alternate remedy by way of suit is available, in exceptional circumstances, depending upon the facts and circumstances of each case, this Court is not prohibited from entertaining a revision petition under S. 115, C.P.C. Hence it is not possible to hold that this revision petition is not maintainable.
13. Now, coming to the merits of the case, the judgment and decree is contrary to S. 6 of the Act and therefore it is without jurisdiction. It is seen from the judgment that the learned Civil judge has disposed of the suit on the basis of the finding recorded on the additional issue without considering the evidence independently as regards Issue No. 1. The judgment and decree made without considering the evidence with respect to Issue No. I answering the said issue in the affirmative, on the basis of the ‘finding on additional issue is without jurisdiction. The learned Civil Judge has further erred in answering Issue No. 2 in the affirmative, even though the Court has no jurisdiction to grant any decree for damages, in a suit for possession under S. 6 of the Act.
14. Where a suit is filed for possession under S. 6 of the Act, what is required to be decided by the Court is the factum of possession of the plaintiffs of the suit property and their dispossession therefrom without his consent otherwise than in due course of law, and the institution of suit for possession within 6 months thereof. S. 6 does not require the Court to decide any question either as to the title of the parties to the suit property or as to any other right of any party with respect to the suit property.
15. It is seen from the judgment that the learned Judge has failed to frame and record proper issues even though the parties have lead evidence on the question of possession and dispossession. The first issue, according to my considered opinion is not adequate for the purpose of adjudicating the real question in controversy in the suit. The issue should have been whether the plaintiffs prove that they were in possession of the suit shop and they have been dispossessed without their consent therefrom otherwise than in due course of law by the defendant and whether the suit has been instituted within 6 months from the date of such dispossession. The question whether the defendant was a tenant or not is immaterial for the purpose of adjudicating the dispute in a suit filed under S. 6 of the Act. In case the plaintiffs fail to prove their possession and dispossession, the suit shall fail. No other points are required to be enquired into by the Court.
16. The learned Civil Judge instead of recording a finding as to the possession of the plaintiffs of the suit properly and their dispossession without their consent therefrom otherwise than in due course of law, has proceeded to dispose of the suit on the basis of his finding on additional issue. The additional issue relates to the relationship of tenant and landlord between the defendant and plaintiffs and the failure to prove the said issue by the defendant, would not enable the plaintiffs to gel a decree under S. 6 of the Act, in the absence of any finding on Issue No. 1. This is what exactly has been in this case by the learned Civil Judge. The judgment and decree is therefore without jurisdiction.
17. In these circumstances, I think it is just and proper to frame necessary issues in the case and to remit the same to the Court of the first instance for fresh disposal in accordance with S. 6 of the Act. Accordingly 1 frame the following issues :
(i) Whether the plaintiffs prove that they were in possession of the suit property and they have been dispossessed without their consent ? and
(ii) Whether the plaintiffs prove that the suit is instituted within 6 months from the date of their wrongful dispossession ?
As the parties have already adduced evidence on these issues, I do not think that it is necessary for the Court to recruit any additional evidence. In view of the aforesaid issues being framed, the issues framed by the learned Judge as indicated in his judgment would not survive for consideration.
18. In the result, I pass the following order-
(i) The revision petition is allowed.
(ii) The judgment and decree dated 9-12-1993 passed by the learned II Additional Civil Judge, Mysore, in O.S. No. 292/87 is set aside.
(iii) The suit is remitted to the Court of first instance for disposal afresh in the terms as stated above. The learned Civil Judge is directed to dispose of the suit on or before 31st October, 1994.
(iv) The parties are directed to appear before the Court of first instance on 5-8-1994 to take further date of hearing.
19. Revision allowed.