,_.
£E{«,"AxKfl'}fi)\""-(M ' =
5 £9
3 /2
IN THE HIGH comm' 09' KARNATAKA AT BANGALQRE
DATED THIS THE 30TH DAY 0? MAY 2002:; A'
BEFORE 4"%' }
THE H()N'BLE MR.JUS'I'lC_E..SU_BH£xSH" §.§,;_é,Ij5'1: Q
REGULAR FIRST APPEEH. xG. :,-Qzéz }~ i' M
clw R.F.A..CRO88 OBJECTI03 NO.6
in R.F.A.Nc. .'§@_[_2(§03 *- "_= V'
BEIWEEN: % «-
Sri.V.'I'.Jayavc1u L
S/0 V.M.'f'hirugnana Chetty '
Aged about 52 years _ '
No.30, M.F.Na1'QnizavRoad V '
Shiv.-=.1jiNagar, B.AN§L¢x1.QRE-i1_."' " " APPELLANT
(By
Sri.Ash-Q1:+N...Na3rak;'i:;,
S1i.K.R.:v_Sathy9;'§-.';ra1;I::3,, Ax 'V5.3 _ --
Sr'i.Nis2:f 2
Aged,a};>o1z't 53 V
' 'S;/o L-ate Sinai}; Mahafjdbb
R] at. _10._, Laser Layout, Frazer Town
'l3ANGALG«REv3.,_ .. RESPONDENT
(Bf As!:%i.s,1é_...Isz*Vii;5_;e£:b, Adv.)
In Cross Obiection No.6! 200'?
" ' ' 'Sri.;Nisar Ahmed
Aged about 53 years
'KS/o Late Sheik Mahaboob, R/at No.10
" Laser Layout, Frazer Town
BANGALORE5. .. CROSS OBJECTOR
[By Sn'.S.A.iVIujeeb, Adv.)
AND:
Sri.V.'I'.Jayave1u
S] 0 V.M.Thirugna:1a Cihetty
Aged about 52 years
No.30, M.F'.Na1*o11ha Road
Shivaji Nagar " " .
BANGALORE-1. .. R.}I*ISP__GN{)ENT
R.F.A.No.329/ 2003 is filed under Secjtien 96'--ai1dv§}It1e;f' 41V, _j
Rule 1 of CPC agaixzst judgment and "deeree 'dt. 1*3_.'lpas$ed °
in e.s.No.15131/1999 on the file 03" e1e'xxv:e..4ddV1.eity'; Ci'.ri1*§$a
Sessions Judge, Mayo Hall, Bailgélqre (C"CH-2O)Véieé1je'eing"the stat
for ejeetment and for eempensakiénw/ltiamages. -- -
RFA Cr.Ob.No.6/ in_"lR.Fl.A.,§<5Q.l329/ 2003 is filed under
Order 41 Rule 22 of ai%-;sins--tf jxidgment and decree
dt.13.12.2002 passed in O.'S,N%§;15131/'1§99_'_.on the file of the
XXVI Addl.City Civil 85,Seseim1s'_J12&ge,aMayo Hail, Bangalore
(CCH--20), ta set 'aside the finding givenofi issue No.3 fixing the
rate of <iamsges..fo:5;iv:rm¢gfi1l~ }i$€2_ ueeiipation of the premises
at Rs.1500/ wIvIié§11I11"a:nr1"d_i1§ect-,»the court below :0 held an
enquiry and fix dai:1ages'fof--wmngfi,il use and occupation of the
pzemises 'a"fl'Rs,'V;iO,0O1G/-lper moiiih fmm the date of filing of the
Theselllffijpeal Cibss Appeal having been heard and
reserve(1~ for judgmem: 'and coming on for Pronouncement of
. fldutlfffiifiililifi L-'live day; t'c;e_«f3o"u:rt deliverecl the follewing:
JUDGMENT
~_ r’l.–.f’hls’l§s».de:feiflda33t’s appeal against the judgment and decree
V . da:e¢i””13t%i:De5ember 2002 in e.s.No.15 131/ 1999.
» AA ‘l’l1e parses will be referred to as arrayed before the trial
3. Respondent — plainfiif sought for decree for eielivexy of
: actual vacant possession of schedule property and for damages at
Rs.10,{)OO/– per month. W
‘_I
of the had filed
4. Case plaintifi’ was that, he
H.R.C.Nc>.10040/1996 before the Additional Small Causes Judge
under Section 21(1)(h], (1′) and (p) of the Karnataka Reat Con.t1o1
Act [hexeinafter referred to as ‘the Act’) for evietle:af.._ofVV the
defendant. However, the said petitien was
the provisions cf Section 31 of the Aunt and ;a’1s’o-~ 15:11. _
decision of the Apex Court upholdingthe:
the rent of the schedule pmperijr ‘teas
was let out for commercial is that the
tenancy of the defendant ‘legal netlce dated 3031
December 1993. The by RPAI) and also
certificatevofv It is also alleged
that. desjaite’ tenancy. the defendant had not
vacated the It is alleged that the cause of
..actiozt«.§;aecrued is vathewgainfie to seek possession and also for
“ydaziziages, 2 l’
resisted the suit by filing wzitten statement
_ Tirfzterallfczg the allegations made in the plain’: and alleged
we is no valid termination of tenancy and fuxther alleged
__ tlae plaintiff is not entitled for compensation.
6. The trial court based on the pleadings, framed the
follcswing issues:
W
9
4%.;
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1, Whether plainfifi proves that the defendant has been
his tenani in respect of suit schedule property No.30,
M.F.Naronha Road, Russel Market, Square,
Bangaiore, on a monthly rental of Rs. 600/ -? _’ V
2. Whether the plainfifl’ has properly _
temmcy ofihe defendant? L” 1
3. Whether the piaintifffis entiiletiftti’ ihe
at whairate?
4. Wheiherplaintifiis enteieg; to A
5. Wlruzzt decree or order?
7. The trial court the efiieeoee held that,
the defenciant is property on the
monthly rent é j “j–‘te*eaa1:icy has been vaiidly
termsn’ ated A
s. ‘rm ;}”s4:’_1.t:CIr1.’1}g for the defendant submitted
that, the suiufeieV%uotVVi11ei11teieL.€1b1e before the City Civil Court, as the
‘docs Vziot _g:_ease to fie a tenant He relied on the
‘.p1*o;\%ieio1L${ of”See?;ion 31 of the Act and submitted that. since the
rexitfh Rs.5Gd]~ and premises being used for
–eoz33n:'{ereie%1 pfi§pose, I3aI’t–V of the Act is excluded and in respect
H K ‘e’.1i»othe’IV Farts, the Act is appiieable. The defendant continues
.%.;;:o”<}5"e "§e11a11t even after the determination of a lease. if the
T defendant continues to be tenant, the suit for possession before
3 u U the Civil Court on the basis of termination notice is not
(V
\s':;.
.1
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maintaizlable. He submitted that the Civil Court has no
jurisdictian.
9. He also submitted that, the question of jurisdiction can
be raised at any stage of the proceedings i1::.c1ud.ij1ig_ in the
execution proceedings. He further submitted eecree
passed by the Court is without jurisdiction %{;r;ee_
eye of law.
10. In this regard. he relied one tieeisiofi’ the A
reported in AIR 1979 SC mete:f’_:ei”§.V;4§5fD;§£ANAPAL
CHETIZAR -vs- YESODAI eeeeeeeee; even if the
1eese is determined by transfer of Propexty
Act, the tenant.ctmfinue;eVVte’ there cannot be any
forfeitufe of teneiiv:’}! cf law, the tenant becomes liable to
be evicteei t”e:€feitii:e– into play only if the tenant has
V inctztfzjed uthe V to be evicted under the Act and not
submitted that, Section 3 ciause (r) of the Act
I =£eeee£%;w«emeh includes the tenant, who has eueered an
_ ort1ei=._ ofeviefien. He further submitted that, even after the
of the tenancy, defendant continues to be a tenant
A such, Section 8 of the Karnataka Small Causes Courts Act,
read with Schedule provides exclusive juxisdietiexx to seek
ejeetment ef tenants and no other Couxt has got the jurisdiction.
\’i
,5-
In this Iegaxd, he relied on a decision of Division Bench of this
Court reported in {LR 1984 Ker 1115 in the tnéztter of
B.S.GIR’IDHAR -vs- PJZSHETTY and submitted ttte.t;._31
exempts the operation of Part–V deaiing with centre}
tenants in respect of non-Iesidentisi1W1j’re.:nises;’ 1$7:Iitose_V’n1onthI3’e’._
rent exceeds R3500/–. The said then
providing exemptions from tltg ‘V Act
respect of such class of id confined to
evictions and this is cleet e~.:§itt_.)–sectio11 (2) of the
Act, which makes Part:-HI of the Act
continue to decision, he further
submitted” the defendant is a tenant
or not the decisicm of the Division Bench.
He further on anethetf’..’decision reported in 2001(4) KLJ 412
theuvngtatterxt”ef_____fEfFJ11@NI mrgarms, BANGALORE -vs~
3_R;$.enet:4t;t?t1tt;teAND ANOTHER and eubeetttett that, the View of
t1de.is followed ey the learned siegte Judge of this
submitted that, subsequently also, the learned
aJLiVd’fg.e of this Court in a judgment reported in {LR 2002
L in the matter of RAMESH P.sE’m ~–mvs- M.S.KRISHNA
but & women has followed the said decision and has held
” ” that, tenant eccupying non-msidenfial premises, tent of which
exceeds Rs.509/- continues to be a tenant even after the
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determination of lease and is iiabie to pay rent and not damages.
He further relied on another decision of this Court reported in ILR
2004 KAR 98 in the matter cf BANGALORE PR{;N_TING &
PUBLISHING CQLTD. ~–vs- SOUKAR TPREMNA7H.’s;s3V”siz§i§mitted
that, suit for ejectment and suit for possession-‘siev
suits; suit for ejectment is filed befQ:e”‘ihe¢ .i_C?oin*t
respect of cases to Which, Act is appiiicaiolej suit _Vfo-njpeszéession is it
filed before the Civil Court in of is ‘net
applicable and the possession uiicier:.the.i§o1’di1ia1y law
before the ordinary -..t}V:1e provisions of the
Transfer of P10i3¢3ft3’.__Act.:A””E~i’e* this Court has held
that. tenant:.eve1i to be a tenant and
govemeiéi ‘by Act.
11. of the jurisdiction issue. be relied
‘~ ._Qfi of Court reporteti in AIR 1954 SC 340 in
the’ iastief*sf-f{fl*?;4IV SINGH AND omsss «~«vs- CHAMAN PASWAN
submitted that, decree passed by a Court
fl haviiigjiiiisdictiox1. is a nullity and that its invaiidity could be
it i’ ‘iipuéveiiiencver and wherever it is sought to be enforced or relied
–i Iipgeiiiieven at the stage sf execution and in coiiateral proceedings.
T further submitted that, since the issue touches the jurisdiction
A of the Court to pass the deems. it can he raises in this appeal. He
relies on another decision of this Court reported in 1989(1) KLJ
83 in the matter sf SHIVAMURTHLT MALLAYYA SWAMI ~113-
BQKHADEV UAMRANE and submitted that, this Court iiiterprefing
Section 9 of the Kamataka Small Cause Courts ‘that,
no amount cf acquiescence, Waiver, consent, lof.,ll1aiv,
bonafides, goed flaith or any oe;;e:?’ Al
jurisdiction on the Court.
12. Per contra, learned the p1ajntifl’
submitted that, Section exelugfleeje conferred on
the tenant from e7;ictioz1,__ Part-V of the Act
deals with proteeti§;:h.’Vof Vlhbmeeviciion and if Part-V is
exeluéed, the Act and if there is
no oeefi seek possessien against the
tenant file .for.l_:f§eesession. The object of the Act is to
protect the even in cases of determination. of
” _ it. is ofily——under such circumstances, the tenant is
31 cf the Act does not protect the tenant of
ne12§feeide11ti;a§1..e:;p1emises, having monthly rent of more than
/ -3″ submitted that, in respect of such tenants, the only
V’ to the lesser or the landlord is to seek detennination
‘ of and he further submitted that, lease is determined in this
” eese. Once the lease is determined, the oeeupafion of the
defendant becomes wrongful oeeupatiien and is iiabie to pay the
-9-
damages. In such circzuxiistances. it is only the Civil Court, which
has got jurisdiction to pass decree for possession and damages.
13. He relied on Section 801′ the Kamataka Cause
Courts Act and submitted that the Sinai} no
jurisdiction to pass decree for possession. in
on the Scheduie and pointed out thatjthe has
no juxisdiction to award damages. iiiifther ist:}o1nittet1:”t11st,._the it i
notice of termination is issued’i.i1’der Séci:io:i_ Transfer
of Property Act and once the leaseis–dete::’m.i1ied,..1:he status of the
defendant becomes flflfilfi is no protection
under the pI’0\{‘$2it)I1S of “of the Act is excluded
and is iiomiprotectiozi under the Act and if
the lease _is %%de:«.:1i4i;:;i;m;’d status of the tenant cannot be
relegated tou”t}iatV»of £1 and his position remains as a
. ofiespéisser ‘and that the suit is maintainable and the
court beiow does not call for interference.
14:.«.I3;’t”t13,e light of the contentions raised by both the parties,
the that arises for consideration in this appeal is:
it “as to whether the Civil Court has jurisdiction to grant
decree for possession and damages in respect of non-
residential premises having rent more than Rs.500}’- to
which Part-Vof the Act is not applicable?”
}
\
r.e~”/
I
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15. it is very unfortunate case, a landlord files an eviction
ilififitioll under Section 21 of the Act on the basis of the judgment
of this Court striking the provisions of Section 31 of the Act.
When the evicnon pefition was pending, the Apex Courft”nph<)1ds
the validity of Section 31 of the Act. In View of , the
plamfifl fiies; the present suit for possession.
decreed the suit for possession. ;
issue of jurtsdicfion before the trial A’ t 2 Vt H
16. in this appeal, ‘”2:
gmund of jurisdiction ax1c§.__}f1as,vAieIieei’;_g’t1e judgments of Apex
Court as well as this in the aznatter of
Vflhanapal Chettiz:tf”3_ that, terrnination of
tenancy of the”‘f’rensfer of Property Act is not
necesSa:t3vf_,in of tenant, Whose tenancy is
protected the ‘Act the efiux of time or detenninatzion
vof and 1tnS«he1{i’ that, tenant becomes liabie to be evicted
not into play only if he has incurred the liability to
be ‘evicted 1in7ri*er?the provisions of the Act and not otherwise.
17Urh¢ Apex Court in the said judgment has held that, in
of statutory tenant, whose rights are pmtected by the
statnte, there is no requirement of terminating the
, uttktenancy. The Division Bench of this Court in B.S.Gin’dhar’s case
,,§,w+~t,e/%
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(supra), has held that, in respect of tenant of 11031-I’€SidCIflial
building having rent of more than RS500] –, the Part–V_ of the Act
is not applicable, but does not exclude the other Parts of the”-Act
and the tenant continues to be a tenant and other ..
continue to apply.
18. On interpretation of the provisiohsliofthe
definition of ‘tenant’ as defined under se¢eog_ii3(r). iltsge mvisianji ‘
Bench of this Court has held that, tenaiit’-,continn.es”teiiisnt
even after termination of thevte1.iaacy”:i11.:lf’liis,. imssessionirviil not
become unlawful and is liable tapaylthé ..g’g:_eed. The saicl
View is fcllowed by _Cotii’t st,bs¢quen:., Vdecision in the
matter of “;l?lE;éTRfiS::i{stzp:*a}’land RAMESH P.s.e:rH
(supra). The is that, Section 31 only
excludes F’art–V not exclude other parts of the
Act… ‘_vThev_»»clelihition of under Section 3(1j of the Act
i:ecl1;ées”evex1., te:1.s3,_1t’– against whom the order of eviction is passed
and hes that, for all purposes, even after evicticn
icrder, the continues to be tenant till evicted and is liable to
4. react not damages.
Under the Kamaiaka Small Cause Courts Act, the
is conferred on the Small Causes Comt only in
tespect of cases arising under Clause-4 of the Schedule,
-13.
inasmuch as suii for ejeemxent where the preperty has been lei;
out under a lease er permitted to be occupied by a whiten
i;t:.s1:rument or orally, the Small Causes Court would be ~ 3
to take cognizance of a suit for the rent of the propefiityv H
such cases, the only substantial issue Wotfildhbe’, :;_1ss’–.&to.;*.=.{IAi e*z’i;e1~’ tihexl
lease has been dete13::::1′;a::ed by efiiux Qf ”
has been éetermined by a netice Ehe
time being in force. By of&,p1e;fi_sieiz3. of’ Section} 8 read
with Schedule, it excludes the suits for
possession, but it ineizjeies the tenant
and also includes ‘ vaiue does not
exceed Rs. 25§{)UG’;~ ‘ ; g V
20. Thelvvsfinejelaf befcsre this Court
in the deeisign zegsorgeé. Bz§z¥GALoRE PRINTING & PUBLISHING
on interpretation of the provisions
of (1). (:2) and Section 9 of the Karnataka
e…s,.-ma read with Schedule has held that, an
_ ‘_1e._1″:eepf;ion out in Ciause (4) of the Schedule i.e., in cases
AAf6r'<-ejeeelnent' or Where the property has been let under a
ea'; ;'}e:Armitteci to be occupied by a written instrument or
. only the Court of Smafi Causes would be eompeteet to
t;.;:3<e cognizance of 'suit fer ejectment'. it makes distinction
between the Suits for ejeetxnent and suits for possession. Though
(9%/?«
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Smaii Causes Comte’ juxisdiction is excluded, but in case of suit
for ejecment, the jurisdiction is confcned on it. Whcn’:.5,__”the
transacfion is governed by the provisions: of the v;r’.;-ft
Pmperty Act and the tenancy is terminated and the. cot’ b
governed by the provisions of the Act, {#16 ‘has
before the regular Civil Court, where the ékmitttés governed ‘by ‘V
Rent Act or the pmvisiofls of the suc’3zV_ for
ejectment has to be filed beibzze On
interpretation of the pmvisione Courts; Act,
this Court has obse:Ve(Vi;V:-.th.é§t,’ ce§iit”_jt’Q:%””:3c,é.scssicn is net
maintainable befoite but in cases where
the Act is a.;;.;;§1i¢5abV’3.%,%;,.,vt1tE;V maifitaifiable before the Small
Causes i’;’~f~iet+.z:* is taken by this Court in.
the decision,_VmpVcf:e§1′ 2564 KAR 2864 in the matter of
ms. fifibmges CQLTD. -vs- G,S.MSAR AHMED
whe1¥:in~» t_1;«ig, has observed that, Small Causes Courts
6} for possession with damages or mesmz:
it a suit only in cases of ejcctmcnt as
t’::a.;j1d:er Arficie 4 of the Karnataka Smafl Causes Courts
that, Wham the Act is applicable. When sixnikar
. came up befeme the Division Bench of this Court in
V,.4″‘C,t§:P.No.1O1]2O(}4 dated 13th Juiy 2007’, the civision Bench
considezing the earlier decisions has heid that:
{Er}
«£4-
“The Smaii Causes Court can take cognizance only of
such suits w}’u’ch are flied seeking ejeciment of tenants of __
the premises it: which Kamataka Rent Act and no! in’
respect of the teruzmis/’ persons who occupy other *
premises to which the Act does not appiy and w.hQ$e ‘e-‘V
tenancy has been determined or has come to ar–“.~1_ end ‘7’
either by efllux of time or by wfzhdrawaf of the sc:n*£e.,V” »
The Division Bench has held that, v€:;Al:;er¢:A’j«ti1é’ ;”§ct,:_ e
applicable, the suit for ejectment is :ua§ntaiflai$ie befeie
Causes Court. ‘ _ V H
21. in the light of the deffc;gion~s”‘;5fLV’£:~;¢gV eviajsion’ Beech of ‘£315
Court in ‘€116 matters of B. THEATRES,
BANGALORE and P. §%.ehe;?§%;i:1* it isfhéld that, even in
case of exclufs-:i'(:2I1’€.)g1.”x continues to be
tenant. if be tenant and is liable to
pay only the deijnages, in my view, the suit for
pQ33essio:}’§, V da;fiagfi$.._.beforc the Civil Court is not
mei3::._taiI§a?;1}¢, .,v’eve1:x th_Qugh it may work out hardship to the
jéeovisions of the Act are applicable and the
V f’¢%ef€f:1daI1t Bt3fi$ €iéiflilant, the suit is filed before the City Civil
puoses7e:9,sion and damages, when the Karnataka Rent
in force and provisions of the other Parts of the
, V _ !Ac.i;’_j.rL%e1’e:app}.icable, as such, the suit before the City Civil Court is
fiainmmable. This is also clear from the definition of ‘tenant’
finder Section 3(r} of the Act. If the defendant confinues to be
V”?
. 15 .
tenant even after the notice under Section 106 of the Transfer of
Propexty Act, then it is only Smaii Cause Ceurt, which 11″-as got the
jurisdiction and not the Civil Court.
22. Since the issue touches the juxisdiefio1i”.v;£ft!:e:iZ2e§i11V£i the
contention of juxésdiction cannot be.” iié:jected’–.Aon}y:ii’6i1_ AV
that it is not taken. before the the ‘A
ohsewation made by the ‘the
SINGH AND OTHERS isuprjez) an:.’;”i}ie:’det:i$fio1:i efflivieion Bench of
this Court in case {supra}.
‘.23. Durieg of the Karnataka Rent
Control Act Rent Act has come into
force. iiieertgr is given to the lessor to seek
appropriate” xtemedji with law.
:i’I13..fir’?i.6\?’\flOf tliievifiseve, the appeal is allowed. The judgment
December 2002 in O.S.No.15}31/1999 is
qiia$_ii¢d- V. i’
A. I11’fl.1e light of the above, the Cross Objection No.6/2%’?
fiat survive for consideration. Aceordingly, it is dismissed.
KNM/~
Sd/-
Judge