IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.968/2012 (RES) C/w R.F.A.Nos.1503/2012, 965/2012, 966/2012 and 967/2012 In R.F.A.No.968/2012:
BETWEEN:
SRI. BABU, S/O. CHINNAPPA NAIDU, AGED ABOUT 54 YEARS, No.242, SEPPINGS ROAD, BENGALURU-1. … APPELLANT (BY SRI M.D. RAGHUNATH, ADVOCATE FOR M/S. LEGAL AXIS, ADVOCATES) AND:
1. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
2. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
BY ITS PRESIDENT MR. H.S. BASAVARAJU. ... RESPONDENTS (BY SRI J.S. SOMASHEKAR, ADVOCATE AND SRI K.S. MALLIKARJUNAIAH, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 3.4.2012 PASSED IN O.S.NO.681/2006 ON THE FILE OF THE XLIV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR EJECTMENT, ARREARS OF RENT AND DAMAGES.
IN R.F.A.No.1503/2012:
BETWEEN:
SMT. YALLAMMA.
SINCE DECEASED BY L.R.
SRI KUMAR, S/O SRI KASI, AGED ABOUT 37 YEARS, No.242, SEPPINGS ROAD, BENGALURU-560 001. … APPELLANT (BY SRI M.D. RAGHUNATH, ADVOCATE FOR M/S. LEGAL AXIS, ADVOCATES) AND:
1. DEVANAHALLI SIDDESHWARA SWAMY, BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
2. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
BY ITS PRESIDENT MR. H.S. BASAVARAJU.
3. SMT. PUSHPA, W/O SRI SHEKAR, AGED ABOUT 45 YEARS, No.330, MALLAPPA REDDY LAYOUT, KORAMANGALA, BENGALURU.
4. SMT. SHANTHI, W/O SRI A. CHANDER, AGED ABOUT 42 YEARS, C/O. ANNAMALAI, R/AT No.27, 10TH CROSS, LAKSHMIPURAM, HALASURU, BENGALURU-08. ... RESPONDENTS (BY SRI J.S. SOMASHEKAR, ADVOCATE AND SRI K.S. MALLIKARJUNAIAH, ADVOCATE FOR R-1 AND R-2) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 3.4.2012 PASSED IN O.S.NO.680/2006 ON THE FILE OF THE XLIV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR POSSESSION, ARREARS OF RENT AND DAMAGES.
In R.F.A.No.965/2012:
BETWEEN:
SRI. RAMESH, S/O. LATE GOPAL RAO, WATCH REPAIRER, AGED ABOUT 44 YEARS, No.242, SEPPINGS ROAD BENGALURU-1. … APPELLANT (BY SRI M.D. RAGHUNATH, ADVOCATE) AND:
1. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
2. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
BY ITS PRESIDENT MR. H.S. BASAVARAJU. ... RESPONDENTS (BY SRI K.S. MALLIKARJUNAIAH, ADVOCATE AND SRI J.S. SOMASHEKAR, ADVOCATE) THIS REGULAR FI RST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 3.4.2012 PASSED IN O.S.NO.679/2006 ON THE FILE OF THE XLIV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR EJECTMENT, ARREARS OF RENT AND DAMAGES.
In R.F.A.No.966/2012:
BETWEEN:
SRI. TANGAVELU, S/O. SRI. NATESH MUDALIAR, AGED ABOUT 54 YEARS, No.242, SEPPINGS ROAD, BENGALURU-1. … APPELLANT (BY SRI M.D. RAGHUNATH, ADVOCATE) AND:
1. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
2. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
BY ITS PRESIDENT MR. H.S. BASAVARAJU. ... RESPONDENTS (BY SRI. J.S. SOMASHEKAR, ADVOCATE AND SRI. K.S. MALLIKARJUNAIAH, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 03.04.2012 PASSED IN O.S.NO.676/2006 ON THE FILE OF THE XLIV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR EJECTMENT, ARREARS OF RENT AND DAMAGES.
In R.F.A.No.967/2012:
BETWEEN:
SMT. GOPI TARACHAND MANGALAM, W/O. LATE TARACHAND, AGED ABOUT 64 YEARS, No.242, SEPPINGS ROAD, BENGALURU-1. … APPELLANT (BY SRI M.D. RAGHUNATH, ADVOCATE) AND:
1. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
2. DEVANAHALLI SIDDESHWARA SWAMY BHAKTHA MANDALI (REGD.), SITUATED AT NAGARESHWARA SWAMY TEMPLE, AVARANA, NAGARATHARAPET, BENGALURU-2.
BY ITS PRESIDENT MR. H.S. BASAVARAJU. ... RESPONDENTS (BY SRI. J.S. SOMASHEKAR, ADVOCATE AND SRI. K.S. MALLIKARJUNAIAH, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 3.4.2012 PASSED IN O.S.NO.678/2006 ON THE FILE OF THE XLIV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU DECREEING THE SUIT FOR EJECTMENT, ARREARS OF RENT AND DAMAGES.
THESE REGULAR FIRST APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These appeals are filed by the appellant – defendants challenging the common judgment and decree dated 3.4.2012 passed in O.S.Nos.676/2006, 678/2006, 679/2006, 680/2006 and 681/2006, on the file of the XLIV Additional City Civil and Sessions Judge, Bengaluru (CCH-45) directing the defendants to hand over the vacant possession of the suit schedule property in favour of the plaintiffs within a period of three months from the date of the order, failing which the plaintiffs will be entitled to recover the vacant possession through process of Court.
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
3. The case of the plaintiffs before the Court below is that the plaintiff No.1 is the Devanahalli Siddeshwara Swamy Bhaktha Mandali (‘Bhaktha Mandali’ for short) and the said Bhaktha Mandali is registered under the Societies Registration Act, 1960 having the committee members and also the office bearers. Plaintiff No.2 is the President elected recently and he has been authorized by the Bhaktha Mandali to initiate the proceedings against the defendants and others who are in occupation of the properties belonging to the Bhaktha Mandali.
4. The defendant in O.S.No.676/2006 is the tenant in respect of two residential portions situated in the ground floor. The residential portions are the part and parcel of the property No.242 situated at Seppings Road and he is paying the rent at the rate of Rs.100/- per month. The schedule premises in occupation of the defendant is required for the bonafide use and occupation of the Bhaktha Mandali for the purpose of putting up new construction and also to carry out social activities. The Bhaktha Mandali has obtained the sanctioned plan for the purpose of demolishing the building and to reconstruct the same and to use the constructed building for the purpose of carrying out social activities of the community. The entire building of the property bearing No.242 is the old building and some of the tenants who were in the said property have vacated and handed over the vacant possession. The plaintiffs have initiated legal proceedings to quit and evict the tenants who are in occupation of other portions of the property No.242. The plaintiffs also initiated H.R.C. petitions against the tenants and those petitions were dismissed on the ground that H.R.C. Act is not applicable. The plaintiffs had earlier filed H.R.C.No.1442/1990 against the defendants and that was also dismissed. H.R.C.No.558/2003 filed against the defendants was also dismissed on the ground that the H.R.C. Court has no jurisdiction.
5. The plaintiffs had demanded the defendant to vacate and hand over the vacant possession of the schedule property and the defendant did not vacate the same. Hence, legal notice was issued calling upon him to vacate and hand over the vacant possession of the schedule premises. The defendant had received the notice and gave untenable reply. Subsequent to the dismissal of H.R.C.No.558/2003, the plaintiffs got issued legal notice terminating the tenancy. The plaintiffs having no other alternative, issued another notice terminating the tenancy. Inspite of receiving the notice, the defendant did not come forward to quit, vacate and hand over the vacant possession of the schedule premises. The defendant also did not pay the rent. The plaintiffs also claimed the damages from the defendant. The defendant appeared through the counsel and filed the written statement denying the averments made in the plaint.
6. The main contention taken by the defendant was that the ejectment suit is not maintainable. The defendant also denied the jural relationship between the parties and also denied not paying the rent of Rs.100/- per month. It is contended that in fact the defendant submitted that he is the tenant under the Bhaktha Mandali and has been paying the rent of Rs.30/- per month since six decades. The plaintiff is not in possession of the property. The question of construction of new building does not arise. The plaintiff Sangha is no more in existence. The sanctioned plan is obtained by the plaintiffs in collusion with the Corporation authorities. In fact, some of the tenants were in possession of the property No.242 and they have not vacated the premises. The defendant has sent the rent at the rate of Rs.30/- per month as per the admitted rate of rent through Money Order. The plaintiffs have refused to receive the rent with an intention to file the present suit for ejectment. Hence, the suit is liable to be dismissed. The defendant is ready to deposit the admitted rent at the rate of Rs.30/- per month before the Court. The defendant is not a chronic defaulter in the matter of payment of rent. It is also contended that the defendant is a blind person and he is working at G.T.R.E. Ministry of Defence and he is having wife and two children. The defendant does not own any land.
7. In O.S.No.678/2006, the suit schedule property is a residential premises situated in first floor in the same property and the same averments of other two suits are made in the plaint. The defendant appeared thought the counsel and filed the written statement. In the written statement the defendant contended that he is a tenant under the Bhaktha Mandali. It is also his case that he has sent the rent through Money Order and the plaintiffs refused to receive the rent. Even now the defendant is ready to deposit the rent before the Court. The defendant contended that the rate of rent is Rs.85/- per month and not Rs.200/- per month as claimed in the plaint.
8. In O.S.No.679/2006, the suit schedule property is a shop premises situated in ground floor measuring 12 x 8½ feet. The plaintiffs also claimed damages at the rate of Rs.1,000/- per month. The defendant in the written statement contended that the claim of Rs.1,000/- per month is erroneous. The defendant also contended that he has not received any notice as alleged by the plaintiffs. The suit schedule property will not fetch the rent more than Rs.100/- per month and prayed the Court to dismiss the suit.
9. In O.S.No.680/2006, the plaintiffs had filed the suit for ejectment and for recovery of arrears of rent of Rs.3,600/- for three years and damages at the rate of Rs.1,000/- per month. The suit schedule property is a residential premises and contended that the rate of rent is Rs.100/- per month. The defendant appeared through the counsel and filed the written statement. The defendant contended that there is no cause of action for the suit. In fact, Devanahalli Siddeshwara Swamy Bhaktha Mandali is having office at Devanahalli and having control over the affairs of the said Bhaktha Mandali. The defendant is a tenant under the said Bhaktha Mandali and is paying the rent of Rs.15/- per month since six decades. The defendant is ready to deposit the said amount before the Court.
10. In O.S.No.681/2006, the plaintiffs sought arrears of rent for the past three years at the rate of Rs.100/- per month and also claimed damages for Rs.1,000/-. The suit schedule property is a residential premises. The defendant took the very same defence as in O.S.No.676/2006. It is contended that the defendant is a tenant under the Bhaktha Mandali and he is paying monthly rent of Rs.15/- since six decades. The defendant has been paying the said rent regularly to one among the members of the said Sangha at the rate of Rs.15/- per month.
11. The Court below having considered the pleadings of the parties, framed the following issues:
1. Whether plaintiff No.1 is the Devanahalli Siddeshwara Swamy Bhaktha Mandali and same is registered one?
2. Whether plaintiff proves that the defendant is a tenant under them and thereby there is jural relationship of landlord and tenant between them, as alleged?
3. Whether suit of the plaintiff is maintainable (in view of the contentions raised in the written statement)?
4. Whether plaintiff has terminated the tenancy of the defendant and same is in accordance with law?
5. Whether plaintiff is entitled to the reliefs sought for?
6. What order or decree?
12. The plaintiffs are common in all the suits. Hence, plaintiffs examined one witness as P.W.1 is all the suits. In O.S.No.676/2006 got marked the documents at Exs.P.1 to 56. In O.S.No.677/2006 got marked the documents at Exs.P.1 to 55.
In O.S.No.678/2006 got marked the documents at Exs.P.1 to 61. In O.S.No.679/2006 got marked the documents at Exs.P.1 to 54. In O.S.No.680/2006 got marked the documents at Exs.P.1 to 49. In O.S.No.681/2006 got marked the documents at Exs.P.1 to 57.
13. The defendant in O.S.No.676/2006 got examined himself as D.W.1 and got marked the documents at Exs.D.1 to 4. The defendant in O.S.No.677/2006 got examined himself as D.W.1 and got marked the documents at Exs.D.1 to 4. The defendant in O.S.No.678/2006 examined himself as D.W.1 and has not produced any documents on his behalf. The defendant in O.S.No.679/2006 examined himself as D.W.1 and got marked the documents at Exs.D.1 to 4. The defendants in O.S.No.680/2006 and O.S.No.681/2006 got examined themselves as D.W.1 and did not produce any documents on their behalf.
14. The Court below, after considering both oral and documentary evidence placed on record, decreed the suit as against the defendants and directed the defendants to vacate and hand over the vacant possession of the suit schedule property in favour of the plaintiffs . Hence, the present appeals are filed before this Court by the defendants in O.S.Nos.676/2006, 678/2006, 679/2006, 680/2006 and 681/2006. The defendant in O.S.No.677/2006 has not filed any appeal.
15. The tenants who have filed these appeals against the judgment and decree have raised common grounds in all the appeals that the Court below has not given a proper opportunity to the appellants to put forth their case and on that ground the matter has to be remanded to the Court below for considering the matter afresh. The other contention of the appellants in all the appeals is that there is no jural relationship between the plaintiffs and defendants. The Court below has committed an error in coming to the conclusion that the plaintiffs have established jural relationship between the parties. Even no document was produced before the Court that the defendants were paying the rents. The other contention of the appellants before this Court is that a notification is issued by the Government that the same is a Muzarai institution and when the notification was issued, the plaintiffs cannot maintain any suit for ejectment and the same is also not considered by the trial Court. The other contention of the appellants/defendants counsel is that the Court below was not having pecuniary jurisdiction to entertain the suit. The plaintiffs ought to have approached the Small Causes Court for ejection instead of City Civil Court and hence the judgment and decree passed by the Court below suffers from infirmity and hence it requires interference by this Court.
16. Counsel appearing for the appellants in all the appeals would contend that the Court below has not given proper opportunity to the defendants to adduce their evidence. An application was filed before the Court below and the same was also rejected and hence the matter requires to be remanded. Counsel also vehemently contended that there is no jural relationship between the parties and no documents are produced to establish the jural relationship between the parties. Apart from that the counsel also would contend that the property was notified as the same is a Muzarai institution and when such being the case, the trial Court ought not to have granted decree. Counsel also relying upon the order passed in W.P.No.57946/2013 would contend that the Writ Petition filed by the plaintiffs was disposed of directing the plaintiffs to approach the Raja Dharmika Parishath with regard to the issue of notification and hence it is clear that the trial Court ought not to have entertained the suit filed by the plaintiffs for the relief of ejection against the defendants.
17. Counsel in support of his contention relied upon the Division Bench judgment of this Court in the case of ABDUL WAJID vs A.S.ONKARAPPA [ILR 2011 KAR 229] contending that, Courts of Small Causes are also essentially ‘Civil Courts’. This is made very much clear in sub-section (2) of Section 8 of Karnataka Small Causes Courts Act. According to sub-section (2) subject to the exception specified in the Schedule and to the provision of any other law, all suits of a Civil nature value of which does not exceed one lakh rupees in the area falling within Bangalore City Corporation and rupees twenty five thousands in other areas, shall be cognizable by a Court of Small Causes. Section 10 makes Code of Civil Procedure applicable to the proceedings before Court of Small Causes to the extent provided under the Code. Hence, the trial Court ought not to have entertained the ejection suits filed by the plaintiffs.
18. On the other hand, the counsel appearing for the respondents/plaintiffs in his argument vehemently contended that the Court below has given opportunity to the defendants to contest the matter and inspite of sufficient opportunity being given, the defendants have not made use of the said opportunity and now they cannot contend that the Court below has not given any proper opportunity. The question of remanding the matter does not arise. Counsel also contended that the notification was issued only in respect of the temple which is situated at Devanahalli and these tenants are the tenants in respect of the property situated at Bengaluru and would contend that the Government itself in the statement of objections filed in W.P.No. 57946/2013 in para 8 it is made that the State have notified the temple only which is a Muzarai institution. The State is nothing to do with the activities and administration of Choultry run by the petitioners, i.e., the plaintiffs and hence the contention of the defendants that already there was a notification in respect of the property in question cannot be accepted. The counsel also would contend that though the defendants have disputed the jural relationship between the parties, in their reply they have admitted that they are the tenants and they are paying the rents and the Court below while considering the jural relationship discussed with regard to the reply given by the defendants admitted the jural relationship and again now they cannot contend that there is no jural relationship between the parties. Counsel for the plaintiffs would contend that the very conduct of the defendants that the Court below has no pecuniary jurisdiction to entertain the suits cannot be accepted. It is also contended that the principles laid down in the judgment referred to by the defendants in the case of Abdul Wajid (supra) is not applicable to the case on hand. It is also contended that earlier HRC petitions were filed before the Small Causes Court for eviction and the same was resisted on the ground that the HRC Court had no jurisdiction to entertain the petition and thereafter only the present ejectment suits are filed before the City Civil Court and hence the contention of the defendants cannot be accepted.
19. Having heard the arguments of the appellants/defendants counsel and also the respondents/plaintiffs counsel and also keeping in view the contentions of the respective parties, the questions that arise for consideration of this Court are : -
(i) Whether the Court below has committed an error in coming to the conclusion that the plaintiffs have established the jural relationship between the parties?
(ii) Whether the Court below has committed an error in not providing proper opportunity to the defendants and whether it requires remanding the matter for fresh consideration?
(iii) Whether the Court below has committed an error in not considering the defence of the defendants that the property belong to Muzarai institution in view of the notification issued by the State and the Court below has committed an error in entertaining the suit? Whether it requires interference?
(iv) Whether the Court below was not having any pecuniary jurisdiction to entertain the suit for ejection and whether it requires interference by this Court?
(v) What order?
Point No. (i):-
20. The main contention of the defendants in this case is that the Court below has committed an error in answering the issue with regard to the jural relationship between the parties. The main contention of the plaintiff in the suit is that it is a Registered Society and the schedule property belongs to the society. The plaintiff is represented by an elected President who has been examined before the Court as PW1. The plaintiffs also got marked Exs.P1 and P2, i.e., resolutions of the plaintiff Devanahalli Siddeshwara Swamy Bhaktha Mandali (Regd) and authorizing the Executive President to file the case and conduct the case. It is important to note that the plaintiffs have also produced registration certificate at Ex.P27 and the plaintiff is a duly registered society. To substantiate the same, PW1 was subjected to cross-examination and nothing is controverted in the cross-examination of PW1 with regard to the plaintiff is the registered society. It is also important to note that though the defendants have raised the contention that there is no jural relationship between the parties, the plaintiffs also relied upon the legal notice issued against the defendants before filing the HRC case and also before filing the present suits before the City Civil Court. The Court below has also taken note of the reply given by the defendants and in para 34 of the judgment, the Court below extracted the reply given by the defendants. In the reply, the defendants admitted that they are the tenants. But the defendants have contended that they are tenants paying different rates of rents. The plaintiffs in the case contended that the rate of rent is Rs.100/-, but defendants in their reply have contended that the rate of rent is Rs.15/-. When such being the reply given by the defendants, the very contention that there is no jural relationship between the parties cannot be accepted. It is also pertinent to note that in the written statement they have contended that they are the tenants of Siddeshwara Swamy Bhaktha Mandali and the said Mandali is having office at Devanahalli and the said Mandali is having the control and affairs of the Bhaktha Mandali and they were tenants under the said Devanahalli Siddeshwara Swamy Bhaktha Mandali. I have already pointed out that Ex.P27 is marked and the said document discloses that the plaintiff is a registered society and certificate is also issued and when such being the case, the defendants ought to have proved the fact that they were the tenants under one Devanahalli Siddeshwara Swamy Bhaktha Mandali and not proved the same has been observed by the Court below while passing the order. When the defendants in the written statement admitted that they are the tenants paying the rents, the Court below also while considering the said contention and considering issue No.2 with regard to jural relationship between the parties and so also relied upon Ex.P29, the compromise petition filed before the Court in O.S.No.
7914/2004 and decree has been drawn in terms of Ex.P30. The plaintiffs have produced voluminous documents before the Court not only regarding establishment of jural relationship between the parties, but subject matter of property belongs to the plaintiffs.
21. The plaintiffs in their arguments contended that once the defendants admit that they were tenants, they were estopped from taking a different stand that there is no jural relationship between the parties. The counsel in support of his arguments relied upon the judgment rendered in the case of APOLLO ZIPPER INDIA LIMITED vs W.NEWMAN AND COMPANY LIMITED [AIR 2018 SC 2847]. The Apex Court in this judgment held that, in civil suit filed against landlord, tenant admitting ownership of landlord and seeking mandatory injunction against landlord – Tenant already accepting ownership of premises by landlord and creating attornment – Plea of disputed ownership, held not tenable and Section 116 of Evidence Act was invoked.
22. The counsel also relied upon the judgment in the case of APOLLO ZIPPER INDIA LIMITED vs W.NEWMAN AND COMPANY LIMITED [(2018) 6 SCC 744]. Counsel brought to my notice the principles laid down in the judgment with regard to estoppel. Estoppel, acquiescence and waiver invoking Section 116 – once the tenant admits the jural relationship between the parties, the tenant is estopped from taking a different stand.
23. Having considered the principles laid down in the judgments referred to supra and also the material on record, the contention of the defendants that they are not the tenants of the plaintiffs cannot be accepted. The Court below while considering the legal notice and reply given by the defendants has taken note of the same and the principles laid down in the judgments referred to by the plaintiffs counsel are aptly applicable to the case on hand that the defendants cannot blow hot and cold once they admit that they are the tenants and they cannot again contend that they are not the tenants.
24. Hence, I do not find any force in the contention of the appellants/plaintiffs counsel that the Court below has committed an error in coming to the conclusion that there exists jural relationship between the parties and answering issue No.2 with regard to jural relationship. Hence, I answer point No.(i) in the negative.
Point No. (ii):-
25. The main contention of the defendants in this appeal is that the trial Court has not given proper opportunity to the defendants. The application filed by the defendants is also rejected. In order to substantiate the said contention, the counsel appearing for the appellants/defendants would contend that only short time was given to lead evidence and no reasonable opportunity was given to by the trial Court. On the other hand, the counsel appearing for the respondents/plaintiffs would contend that PW1 was examined long back and he was not cross-examined in time and even though the Court below has taken no cross-examination of PW1, an application was filed before the Court below and the same was allowed and an opportunity was given to cross-examine PW1. Thereafter, after completion of the evidence of PW1, matter was posted for defendants evidence. On perusal of the order sheet dated 25.1.2012, it discloses that the plaintiffs and their counsel were present at 1.15 pm. Defendants sought time to cross-examine PW1 and the prayer was rejected and posted for defendants evidence fixing the date as 6.2.2012 and that on 6.2.2012, I.A.No.13 is filed by the defendants and plaintiffs said no objection to allow the application and hence matter was deferred for cross-examination of PW1. PW1 was cross-examined and the case was posted for further evidence of plaintiffs. On 15.2.2012 an application was made and no further cross-examination and hence the case was posted for defendants evidence. The case was posted to 27.2.2012. On 27.2.2012, the defendants did not lead evidence and the matter was adjourned to 5.3.2012. On 5.3.2012 also the defendants did not adduce any evidence and adjourned to 12.3.2012. On 12.3.2012 also, the defendants did not adduce evidence and again adjourned to 20.3.2012. On 20.3.2012, the defendants were present and again sought time. The Court taking note of the fact that the matter was of the year 2006, no evidence was adduced, posted the case for arguments. On 21.3.2012 plaintiffs counsel filed written arguments and defendants were present. However, an opportunity was given to the defendants to file the written arguments and posted the matter to 3.4.2012. When the matter was listed for pronouncing judgment on 3.4.2012, an application was filed to reopen the case and adduce evidence and the same was dismissed.
26. Having taken note of the order sheet, it discloses that PW1 was examined in the year 2010 and he was not cross-
examined till 2012 and when cross-examination was not done on 25.1.2012 the Court recorded that the plaintiff was not cross- examined and the matter was posted for defendants evidence. An application was filed and the same was entertained and allowed and date was fixed for cross-examination of PW1. PW1 was cross-examined almost after two years. From 2010 to 2012 and thereafter, an opportunity was given to the defendants. Inspite of five dates are fixed for defendants evidence, the defendants have not adduced evidence. Now, they cannot contend that the Court below has not given proper opportunity to adduce evidence before the Court. It discloses that the defendants did not make use of the opportunity given to them and now they cannot contend that no proper opportunity was given by the trial Court. Having considered the material on record, I do not find any force in the contention of the defendants that the Court below has not given proper opportunity and hence I answer issue No.2 in the negative.
Point No. (iii):-
27. The main contention of the defendants is that the property was notified as the same is a Muzarai institution and hence the plaintiffs cannot maintain the suit against the defendants. The counsel appearing for the plaintiffs would contend that temple is taken to by Muzarai department and not the remaining properties of the plaintiffs. It is also the contention that the temple is situated at Devanahalli and the property in question is situated at Bengaluru and the defendants have not placed any material before the Court that the property which is in question was notified by the Government. They have themselves admitted that they are the tenants of the plaintiffs and it is admitted fact that the property in question wherein they are residing and also running the business is the residential premises and commercial premises consisting of ground and first floor. Counsel appearing for the plaintiffs brought to my notice they have challenged the notification in regard to the temple in W.P.No.57946/2013 and the said Writ Petition was disposed of by this Court directing them to approach Raja Dharmika Parishath. The counsel also brought to my notice that the State in para 8 of the objections to the Writ Petition have categorically contended that only notified place is the temple which is a Muzarai institution and also in the objection statement contended that the respondents are nothing to do with the activities and administration of Choultry run by the petitioner.
Having considered the contention of both the parties, the defendants have also not placed any material before the Court that the property in question was notified by the State. When such being the case, the very contention of the defendants that the property belongs to Muzarai institution cannot be accepted. There must be cogent evidence before the Court that the property is notified by the State taking the same into the Muzarai department. The contention remains as contention and no material is placed before the Court to substantiate the same that the said schedule property was notified as Muzarai property. Hence, I do not find any merit in the contention of the defendants that the property is notified as Muzarai property. Hence, I answer point No.(iii) in the negative.
Point No. (iv):-
28. The contention of the defendants counsel is that inspite of specific defence taken in the written statement that the Court has no jurisdiction to entertain the suit, did not frame any issue with regard to pecuniary jurisdiction to entertain the suit as the plaintiffs had alternative remedy before the appropriate forum. On perusal of the issues framed by the trial Court, no doubt no specific issue was framed with regard to the pecuniary jurisdiction. However, issue No.3 is framed with regard to whether the suit is maintainable in view of the contention raised in the written statement. It has to be noted that when the pleading is specific, when the parties have understood the dispute between the parties and let their evidence only on the ground of not framing the specific issue, the same does not become fatal. The only clinching issue has to be considered by Court is whether there was jurisdiction or not to entertain the suit. The parties have understood the pleadings of both the parties and led their evidence. On perusal of the evidence of PW1, nothing is cross-examined with regard either to jural relationship or the defence which has been raised in the written statement. Mainly the defendants have concentrated while cross-examining PW1 with regard to legal entity of the plaintiffs. Counsel appearing for the defendants has relied upon the judgment in the case of Abdul Wajid (supra) and brought to my notice para 87 of the judgment with regard to the principles laid down in the judgment with regard to Court of Small Causes is also a Civil Court and also referred to sub- section (2) of Section 8 of the Karnataka Small Causes Courts Act and suits can be entertained of civil in nature which does not exceed rupees one lakh in the case of area falling within Bengaluru City Corporation and rupees twenty five thousands in other cases shall be cognizable by the Court of Small Causes. The pecuniary jurisdiction is in respect of Bengaluru area. The amount is rupees one lakh and so also in respect of other areas the amount is rupees twenty five thousand. It is further observed in the judgment that though the phrases ‘Court of Small Causes’, ‘Civil Court’ and ‘City Civil Court’ have been defined in the respective enactments, it is only for the purpose of institutional distribution of suits involving disputes of civil nature amongst these designated Courts subject to place or area within which the cause of action for the institution of suit arises. Thus, the Court of Small Causes is essentially a Civil Court, remains a Civil Court and it is not as though it is one to be excluded from the purview of the phrase ‘Civil Court’.
29. There is no dispute with regard to the principles laid down in the judgment and also the jurisdiction of the Small Causes Court is in Bengaluru it is for rupees one lakh and in other areas the pecuniary jurisdiction is rupees twenty five thousand. The main contention of the defendants is that the annual rent of the petition schedule premises is less than rupees one lakh and when such being the case the plaintiffs ought to have approached the Court of Small Causes and not the Civil Court. Having considered the contentions raised by the defendants and also the principles laid down in the judgment, I have already pointed out that there is no dispute with regard to jurisdiction of the Small Causes Court and there is no specific bar that the plaintiffs cannot approach the Civil Court to get an order of eviction by filing the suit. The very contention of the defendants is that they are paying the rent of Rs.15/-, Rs.85/- and Rs.100/- and the plaintiffs also sought for the relief of ejection as well as recovery of the amount. It is important to note that the plaintiffs have issued the legal notice against the defendants and the same has been served on the defendants and they have given the reply and tenancy was terminated by the plaintiffs and also they have claimed damages at the rate of Rs.1,000/- per month. The plaintiffs have sought for recovery of rent at the rate of Rs.100/- for a period of three years and also sought for damages of an amount of Rs.1,000/- from the date of termination of the tenancy. It is also the case of the plaintiffs that no rent has been paid and they are squatting on the property without the payment of rent. It is also the case that in the earlier HRC case filed, they took the defence that HRC Court has no jurisdiction and hence the earlier petitions are dismissed. Hence the present suits are filed. When such being the circumstances, the very contention of the defendants that the Court has no pecuniary jurisdiction cannot be accepted. The plaintiffs have also sought for damages against the defendants and the tenancy was terminated and suit filed for the relief of ejectment and also sought for possession since the defendants after the termination of tenancy by issuing of notice under Section 106 of the Transfer Property Act and they did not bother to hand over the possession. So also not paid the rent from 2003 onwards. Hence, it exceeds the amount inclusive of arrears and damages. When such being the case, the contention of the defendants cannot be accepted. Hence, I answer point No. (iv) in the negative.
30. At this juncture, the counsel appearing for the appellants submitted that the defendants will pay the arrears of rent as directed by the Court below within three months and reasonable time has to be given to vacate and hand over the possession in favour of the plaintiffs and the same may be considered. Counsel appearing for the plaintiffs submits that the defendants are squatting on the property without payment of rent and if they are ready to pay the amount within one month this Court can grant reasonable time to vacate the premises. In view of the submissions and also discussions made above and considering that the plaintiffs are agitating to get the possession from 2003 onwards, I pass the following:
ORDER (i) The appeals are dismissed.
(ii) Defendants/appellants are given two months time to pay the arrears of rent as directed by the Court below.
(iii) Defendants/appellants are given six months time from the date of this order to vacate and hand over the possession in favour of the plaintiffs without seeking any further time.
(iv) The Registry is directed to send the lower court records forthwith.
MD/CKL Sd/- JUDGE