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H. Abdul Rasheed vs Madrasa-E-Arabia, By Its … on 6 August, 2004

Karnataka High Court
H. Abdul Rasheed vs Madrasa-E-Arabia, By Its … on 6 August, 2004
Equivalent citations: ILR 2004 KAR 4717
Author: V G Gowda
Bench: V G Gowda


JUDGMENT

V. Gopala Gowda, J.

1. The respondent was the plaintiff and Appellant was the defendant in the Trial Court. For the sake of convenience, the parties are referred to as per their rank in the Trial Court.

2. The plaintiff is a Wakf institution. It has filed the suit for recovery of possession of the suit schedule property from the defendant. The plaintiff alleged that the defendant is a chronic defaulter in payment of rents. It is claimed that the suit property is required by the plaintiff for its own use. The tenancy of the defendant claims to have been terminated by issuing legal notice dated 1.12.1995. Plaintiff claimed damages at the rate of Rs. 3,000/- per month from 1.4.1996 until the defendant delivers vacant possession of the suit premises.

3. The defendant filed written statement resisting the suit and denying the plaint averments. It is stated that there is no valid termination of the tenancy. Defendant denied that he is liable to pay damages and sought for dismissal of the suit.

4. On the basis of the pleadings, the Trial Court framed issues and went for trial. Parties adduced evidence and produced documents in support of their respective case. Upon consideration of the material brought on record, the Trial Court partly decreed the suit directing the defendant to vacate and deliver vacant possession of the suit premises within six months and to pay damages at Rs. 2,000/- p.m. from 1.4.1996 upto the date of vacating. R.A. No. 155/98 preferred by the plaintiff against the judgment and decree of the Trial Court was dismissed by the first Appellate Court by its judgment dated 7.6.2003. Being aggrieved by the same the defendant has presented this second appeal.

5. When the appeal was pending before the first Appellate Court, the defendant filed an application seeking amendment to written statement to the effect that the suit premises is a “public premises” as defined under Section 2(e)(v) of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974 (hereinafter referred to as ‘the Act’) and in view of Section 16 of the Act, which bars the jurisdiction of the Civil Court to entertain the suits pertaining to public premises, original suit was not maintainable against the defendant. The first appellate Court has applied the law laid down by this Court in M/s. MERCURY PRESS v. AMEEN SHACOOR, ILR 2002 Karnataka 2304
and Section 6 of the General Clauses Act, and wrongly held that the amended provision of the Act cannot be applied to the case on hand.

6. In my opinion, the ratio laid down in that case has no application to the fact situation. The first appellate Court has committed a grave error in holding that the amended Provisions of the Act are not given retrospective effect. Without understanding the meaning of ‘substitution’ of Clause (v) of Section 2(c) by way of an amendment by Act No. 22/99 the first Appellate Court has wrongly held so. The substitution will be effective from the date the principal Act came into force as mentioned under Section 1(3) of the Act which states that the Act shall be deemed to have come into force on 18th January 1962 except Sections 12 and 19, which shall come into force at once.

7. Since the premises in question is a ‘public premises’, licencing right of the premises should have been granted to the defendant and other occupants by conducting public auction as per the decision of the Apex and this Court reported in RAMANADAYARAM SHETTY V. INTERNATIONAL AIRPORT AUTHORITY, and MOHAN P. SONU V. STATE OF KARNATAKA, 1992(2) Kar. LJ. 245. That is not done in this case. Therefore, the defendant should be treated as an unauthorized occupant of the premises in question as defined under Section 2(g) of the Act. The remedy available to the plaintiff to evict the defendant is under the provisions of the Act.

8. It is to be noted that in the first place the plaintiff filed eviction petition against the defendant and the same was dismissed as not maintainable in law. Thereafter, the suit was filed invoking right under Section 106 of Transfer of Property Act and obtained the decree for possession and damages in respect of the suit schedule premises against the defendant. Even though as on the date of passing of the judgment and Decree the suit was not maintainable, since the defendant is in continuous unauthorized occupation of the suit premises right from 1974 by paying meager rent for the public premises, it is not a fit case for interference at this stage in so far as the decree for possession is concerned.

9. Though the contention urged on behalf of the defendant is that the procedure contemplated under Section 5 of the Act shall be followed by the plaintiff to evict him from the premises in question, since the defendant had the opportunity to present his case before the Trial Court and has been enjoying the premises from a long time, no prejudice is caused to him.

10. So far as the decree relating to damages awarded against the defendant is concerned, the Trial Court has awarded damages without any factual foundation, basis and legal evidence in this regard. The plaintiff also has not paid Court fee on the claim for damages. Hence, Substantial Question of Law No. 13 as framed in the appeal memorandum arise for consideration in this case. That apart, no opportunity was given to the defendant in the matter of awarding damages by the Courts below and therefore, this Court is inclined to set aside the decree for damages awarded against the defendant.

11. By way of Affidavit filed by the’ defendant in this Appeal it is brought to the notice of this Court that some more persons, who are similarly situated as that of the defendant, are in occupation of other premises of the plaintiff but the defendant alone is singled out for eviction from the premises in question. The learned Counsel for the plaintiff submits that already proceedings are initiated against the occupants of other premises also under the provisions of the Act and that steps will be taken to auction the licensing rights in favour of the eligible persons as per the decisions of the Apex Court and this Court referred to supra. The Wakf institutions cannot confer largesse upon the persons by allotting the public premises on lease or license without conducting public auction as held in the case of RAMANADAYARAMA SHETTY V. INTERNATIONAL AIRPORT AUTHORITY referred to supra in.

12. In the circumstances, this appeal is partly allowed and the decrees for damages of the Courts below are set aside. The decree for possession of the suit schedule premises is not disturbed. The authorities of the plaintiff shall evict the other unauthorized occupants and allot the rights of licence in public auction. The process of granting licenses in respect of the shops of the plaintiff shall be completed without six months from the date of receipt of copy of this judgment. Until then, the defendant shall not be evicted from the premises in question.

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