IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.9889 OF 2017 (GM-CPC) Between:
1. Vivekananda Education Society, Represented by its Secretary, Smt.Elizabeth P., Aged about 40 years, D/o Late J.A.Peter, Jayanagar, 4th Cross, Shivamogga – 577201.
2. Vivekananda Education Society, Represented by its President, Smt.Ceciliya Emmanuel, Aged about 53 years, D/o Late J.A.Peter, Jayanagar, 4th Cross, Shivamogga – 577201. …Petitioners (By Sri S.V.Prakash, Advocate) And:
1. Sarvodaya Education Society (R), Jayanagara, Basavanagudi, Shivamogga, By its Secretary Smt.Vijaya S.Vernekar, Aged about 35 years, R/o Basavanagudi, Shivamogga – 577201.
2. Sarvodaya Education Society (R), Jayanagara, Basavanagudi, Shivamogga, By its President Sri N.J.Veeranna, Aged about 67 years, R/o Sharavathinagara, Shivamogga – 577201.
... Respondents This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to set aside the order dated 01.02.2017 passed by the learned Prl.Civil Judge and JMFC., Shivamogga on issues 4 and 5 in O.S.No.706/2013 at Annexure - D.
This writ petition coming on for Preliminary Hearing this day, the court made the following:
O R D E R The petitioners-defendants filed the present writ petition against the order dated 01.02.2017 passed by the learned Principal Civil Judge and JMFC., Shivamogga in O.S.No.706/2013, answering issue Nos.4 and 5 in the affirmative holding that the valuation made by the plaintiffs for the purpose of Court fee and jurisdiction is proper and correct and the Court has jurisdiction to entertain and try the present suit.
2. The respondents herein are the plaintiffs before the Trial Court filed O.S.No.706/2013 for a decree of ejectment against the defendants in respect of suit schedule ‘B’ property and for a decree of a sum of Rs.4,680/- being the arrears of rental for three years and for an inquiry and determination of damages from the date of suit till delivery and to award damages and contended that the plaintiff No.1 is a Society registered under the Karnataka Societies Registration Act and Rules there under and having its registered office at Sarvodaya School Campus, Jayanagar, Shivamogga City. The suit is filed by its Secretary, vested with the powers under the Act and the registered bye-laws framed by the plaintiff No.1 Society. The plaintiff No.2 is its President, who is Chief Controlling Authority of the plaintiff No.1 Society and therefore plaintiff Nos.1 and 2 have together brought the suit.
3. It is further case of the plaintiffs that, the first plaintiff established and running several educational institutions namely; (1) Sarvodaya Balika Pre-University College, (2) Sarvodaya Secondary S.Ramesh Balika Proudashale, (3) Sarvodaya Higher Primary Shale, (4) Sarvodaya Prathamika Shale and (5) Sarvodaya Nursery Shale, exclusively meant for girl students. In all the institutions as many as 1800 students are studying and the schools are known for quality education and less expensive education in Shivamogga City. It is their further case that the plaintiff has acquired the suit schedule ‘A’ property by two deeds of sale executed by the City Municipal Council, Shivamogga on 01.06.1968 and 01.12.2005. To give better identity of the suit schedule ‘A’ property and suit schedule ‘B’ property, a sketch depicting the suit schedule ‘A’ property with details of the properties within it in the campus and belonged to the plaintiffs is prepared and filed as Annexure-A to the plaint. The suit schedule ‘A’ property delineated by letters by ‘ABCDEF’ is consisted of two parts namely; (1) delineated by letters ‘ABCDGF’ at Annexure-A to the plaint acquired by the plaintiffs by a deed of sale deed 01.06.1968, executed by the City Municipal Council, Shivamogga in favour of the plaintiffs, (2) delineated by letters ‘EDGF’ at Annexure-A, acquired by the plaintiffs by a deed of sale dated 01.12.2005, executed by the City Municipal Council, Shivamogga.
4. It is further case of the plaintiffs that the first defendant is a registered society under the Karnataka Societies Registration Act, represented by its Secretary and the second defendant is the President of the defendant No.1 society. The defendant No.1 society running a Nursery School known as Vivekananda Nursery School and pre-primary classes namely; lower kindergarten and upper kindergarten at the suit schedule ‘B’ property, which is a part of the suit schedule ‘A’ property delineated by letters ‘QRST’ which measures 20’X40’. The suit ‘B’ schedule property is part of the property, sold by the City Municipal Council, Shivamogga under the deed of sale dated 01.12.2005. The defendants have occupied the suit schedule ‘B’ property from the City Municipal Council, Shivamogga, the former owner of the suit schedule properties in 1980’s or so. The plaintiffs understand that one Doreswamy was running the defendant institution and it is at his instance the City Municipal Council, Shivamogga permitted to occupy the suit schedule ‘B’ property on lease basis.
5. It is further case of the petitioners that, the respondents-plaintiffs built buildings in stages in suit schedule ‘A’ property excluding suit schedule ‘B’ property to meet the requirements of the various schools and laid the compound enclosing the campus. There is no sufficient breathing space for the children of the school to move about and to play and therefore the plaintiffs society proposed to demolish ‘QRST’ structure, located in the suit schedule ‘B’ property which is also more than 75 years old and in dilapidated condition and not fit for occupation particularly for children and to use it as a vacant space/breathing space for the children of the schools and to use it for their play and other activities. Therefore, the plaintiffs require the suit schedule ‘B’ property for their bonafide use and occupation.
6. The defendants had filed a suit against the plaintiffs for injunction in O.S.No.148/2006, when the plaintiffs demolished the dilapidated structure situated to the west of suit schedule ‘B’ property namely ‘Q1’, ‘QTTI’ portion at Annexure-A. Apart, the defendants had also sought for injunction for the suit schedule ‘B’ property. The said suit was dismissed on 22.06.2013. The defendants have not paid the rentals to the plaintiffs after the plaintiff had purchased the premises including the suit ‘B’ property. Having regard to the law of limitation, the plaintiffs have restricted their claim for rent for only three years. The defendants were called upon to pay the rent of Rs.130/- per month. For the last three years preceding thereto ending with 31.07.2013 the defendants have not paid the rents. Therefore, he filed the suit. The plaintiffs by a notice dated 21.08.2013 terminated the tenancy of the defendants in respect of the suit schedule ‘B’ property.
7. The defendants filed written statement denied the entire plaint averments and contended that, the CMC Shivamogga had no right to execute the alleged registered sale deeds in favour of the plaintiffs. The defendants are continuing in possession and enjoyment of the suit schedule ‘B’ property and the open space, approach road and all other appurtenants thereto as the absolute owners thereof. Neither the plaintiffs nor CMC Shivamogga has any semblance of right over the said properties. The plaintiffs have got issued the aforesaid alleged Termination Notice and filed the present suit in collusion with the Municipal authorities and other persons having ill will against the defendants only with an intention to disturb the peaceful possession and enjoyment of the defendants of the said properties and to knock of the same. Therefore, sought for dismissal of the suit.
8. On the basis of the pleadings the trial Court framed totally 10 issues on 19.12.2013 and subsequently issue No.8 was deleted by an order dated 01.02.2017. Out of 10 issues framed, issue Nos.4 and 5 were treated as preliminary issues as under:
Preliminary Issue No.4 is “Whether the valuation made by the plaintiffs for the purpose of Court fee and jurisdiction is proper and correct?”
Preliminary Issue No.5 is “Whether this Court has jurisdiction to entertain and try the present suit?”
9. After considering the arguments on both the sides, the learned Trial Judge passed impugned order dated 01.02.2017 answering issue Nos.4 and 5 in the Affirmative holding that the valuation made by the plaintiffs for the purpose of Court fee and jurisdiction is proper and correct and this court has jurisdiction to entertain and try the present suit. Hence, present writ petition is filed.
10. I have heard the learned counsel for the petitioners.
11. Sri S.V.Prakash, learned counsel for the petitioners contended that the impugned order passed by the Trial Court holding issue No.4 and 5 with regard to Court fee and jurisdiction to entertain and try the suit is contrary to material on record. He further contended that, the valuation slip valuing the relief of ejectment at Rs.1560/- being annual rent at the rate of Rs.130/-p.m., and totally the suit valued at Rs.6240/- and paid Court fee of Rs.160/-. The petitioners have contended in the written statement that the suit valued is incorrect. The respondents have not paid correct Court fee. The learned counsel would further contended that the Trial Court passed the impugned order on issue No.4 and 5 without recording any evidence. Therefore, the impugned order passed by the Trial Court is arbitrary, illegal and contrary to the materials on record and it is liable to be set aside. Therefore, he sought to allow the petition.
12. Having heard learned counsel for the petitioners, the respondents Nos.1 and 2 – plaintiffs filed suit for ejectment contended that they are the owners under registered sale deeds dated 01.06.1968 and 01.12.2005 in respect of suit schedule property, morefully described in the plaint. The defendants have specifically contended in the written statement that the CMC Shivamogga had no right to execute the alleged registered sale deeds in favour of the plaintiffs. The defendants are continuing in possession and enjoyment of the suit ‘B’ schedule property and the open space, approach road and all other appurtenants thereto as the absolute owners thereof. Whether the plaintiffs or defendants are the owners as claimed has to be decided by the trial Court based on the oral and documentary evidence on record. Now the only issue is with regard to preliminary issue Nos.4 and 5.
13. According to the plaintiffs, the suit is valued at Rs.6240/- and paid Court fee of Rs.160/. The trial Court in its order has opined that the valuation made by the plaintiffs is proper and Court fee paid by them is sufficient under Section 41 of the Karnataka Court Fees and Suit Valuation Act, 1958. Learned counsel for the defendants argued that, it is false that the first defendant was a tenant in respect of the suit ‘B’ schedule property under CMC Shivamogga on a monthly rent of Rs.130/- and the suit B schedule property measured only 20’X40’ with a building measuring 20’X37’.
14. Considering the rival contentions, the trial Court recorded that, eviction of the defendants is sought from the suit ‘B’ schedule property measuring 40X20 feet with a building thereon measuring 20X37 feet. Therefore, it is clear that plinth area of the premises is exceeding 14 square metres. In view of the fact that the defendants are running educational institution in the said premises, it is being used for non residential purpose. In view of the same, rent Court would not get jurisdiction to try the eviction petition. In this regard Section 2 (3) (g) of the Karnataka Rent Act, 1999 is very clear. The Trial Court further recorded that the exclusion clauses contained under Section 2 (3) (a) to (h) cannot be read independently. They must be read and examined together to know whether any one of the clauses excludes the jurisdiction to rent Court. If any one of the clauses ousts the jurisdiction of rent Court, definitely remedy of the landlord/owner is to institute a suit. The plaintiffs have also done the same thing and instituted the present suit. Therefore, this Court is of the opinion that the contention of the defendants that, this Court has no jurisdiction and remedy of the plaintiffs is to approach the rent Court is not acceptable. Accordingly, the Trial Court considering the entire material on record answered preliminary issue Nos.4 and 5 in the Affirmative holding that, the valuation made by the plaintiffs for the purpose of Court fee and jurisdiction is proper and correct and jurisdiction of the Prl.Civil Judge and JMFC., Court has jurisdiction to entertain and try the suit.
15. In view of the above, the impugned order passed by the Trial Court is just and proper and petitioners have not made out any grounds to interfere with the said impugned order by exercising the powers under Article 227 of Constitution of India.
Accordingly, the Writ Petition is dismissed.
Sd/- JUDGE MR