@JUDGMENTTAG-ORDER
B.S. Patil, J.
1. This revision petition is filed under Section 18 of the Karnataka Small Cause Courts Act, 1964, challenging the judgment and decree dated 24.11.2014 passed in S.C. No. 1877/2011 by the Small Causes Court, Bengaluru, directing the petitioner to vacate and hand over vacant possession of the petition schedule premises within 90 days from the date of the judgment.
2. Facts, stated in nutshell are, that the plaintiff claiming to be the landlord of the premises in question, instituted the suit O.S. No. 1584/2007 on the file of the City Civil Court, Bengaluru, seeking possession of the suit schedule premises and for damages at the rate of Rs. 20,000/- per month from the date of termination of tenancy till the date of delivery of possession along with costs.
3. The suit schedule premises is a shop situated at Dhanavanthri Road, Bengaluru, measuring 300 square feet (ground floor). Plaintiff contended that he was the absolute owner of the shop premises and the same was let out to the defendant on a monthly rent of Rs. 3,000/- with interest free refundable security deposit of Rs. 30,000/-. Plaintiff further contended that on 06.01.2007, he issued legal notice terminating the tenancy in accordance with the provisions of Section 106 of the Transfer of Property Act, by dispatching the notice to both the residential address and the address of the petition schedule shop. But, the defendant failed to receive the registered post which was returned with an endorsement ''not claimed'' and notice sent to the plaint schedule premises by registered post was duly served on 08.01.2007. He has also sent the notice through certificate of posting, which was served on the defendant. The suit was filed on 20.02.2007.
4. Defendant-petitioner herein entered appearance and filed his written statement on 16.12.2008. He contended that the suit schedule property was let out to the defendant by the plaintiff and one M.S. Papanna who was none other than the uncle of the plaintiff. He pleaded his ignorance with regard to the assertions made by the plaintiff that plaintiff was the absolute owner of the shop premises. He further contended that advance amount of Rs. 33 lakhs was paid by the defendant to the plaintiff and M.S. Papanna. He denied the receipt of legal notice sent by the defendant. In paragraph 8 of the written statement, he specifically contended that as the annual rent payable in respect of the suit schedule property was Rs. 36,000/-, the suit filed before the City Civil Court was not maintainable as the Court of Small Causes was given pecuniary jurisdiction to try the suits of the value of less than Rs. 50,000/- and that the said pecuniary jurisdiction of the Small Causes Court had been subsequently enhanced to Rs. 1 lakh, and therefore, the City Civil Court had no jurisdiction to entertain the suit.
5. The City Civil Court passed an order on 21.06.2011 holding that it had no jurisdiction to entertain the matter as the Small Causes Court had jurisdiction to entertain the suit. The plaint was ordered to be returned and indeed the matter was transferred to the Small Causes Court, Bengaluru. By that time plaintiff had already filed affidavit evidence and was cross-examined. Defendant had also filed his affidavit evidence, but was not cross-examined. Thereafter, the Small Causes Court issued notices to both the parties.
6. The matter was posted on several occasions before the Small Causes Court for cross-examination of defendant/DW-1. But, he did not appear before the Court. The matter was posted for arguments. Subsequently, defendant appeared and filed an application for re-opening the case by recalling the order closing his evidence and posting the matter for arguments. The Court allowed the said application and provided an opportunity to offer himself for cross-examination and to lead further evidence. However, this was not utilized by the defendant. Hence, the matter was again posted for arguments. Thereafter, the matter was heard and reserved for judgment. After the matter was reserved for judgment, the defendant made an application for advancing the matter and also for re-opening the defendant''s evidence. The said application was rejected and the judgment was pronounced ordering eviction of the petitioner from the premises. In this background, the present revision is filed.
7. Learned Counsel for the petitioner has contended that as the defendant had taken the defence that M.S. Papana was also one of the lessors along with the plaintiff and had received part of the earnest money given as advance amount, he was a proper and necessary party and the Court below ought to have considered this aspect of the matter. He points out that as the question regarding non-joinder of necessary party was raised and as also the controversy regarding refund of earnest money deposit of Rs. 33 lakhs was involved, the Small Causes Court had no jurisdiction to entertain the suit. It is his contention that the Court below has failed to record any finding with regard to non-impleadment of M.S. Papanna and the refund of Rs. 33 lakhs, therefore, there was non-application of mind to the essential issues involved in the case. He also points out that despite an order passed by this Court in W.P. Nos. 39626-627/2014 disposed of on 22.08.2014, directing the Small Causes Court to decide all aspects including whether or not there was any earnest money deposit made and whether any court fee was payable on the earnest money deposit, no finding has been recorded by the Small Causes Court and therefore, the judgment and decree passed is illegal. He has placed reliance on the judgment of the Full Bench of this Court in the case of Abdul Wajid v. A.S. Onkarappa - ILR 2011 KAR 229, to contend that as per sub-clause (b) of Clause 4 of the schedule appended to the Act, if the issue of determination of rights of a lessee and his consequential ejectment is involved in the suit, then the matter would fall within the purview of the Small Causes Court and not otherwise. He has also referred to the judgment in the case of Khandelwal Brothers Company Limited v. G.S. Nisar Ahmed - ILR 2004 KAR 2864. Inviting the attention of the Court to paragraph 8 of the said judgment, he submits that as a specific defence had been taken in the written statement contending that a sum of Rs. 33 lakhs had been paid as earnest money deposit, the suit could not have been tried by the Small Causes Court as the issue that arose for consideration were not merely confined to valid termination of the tenancy and consequential ejectment of the tenant.
8. Learned Counsel appearing for the respondent strongly supports the order passed and urges that the suit was instituted long ago in the year 2007 before the City Civil Court and it was the respondent who urged that the City Civil Court had no jurisdiction and the Small Causes Court had jurisdiction, therefore, the matter was transferred to the Small Causes Court as back as in the year 2011. The affidavit evidence of the defendant was filed on 07.04.2011 and the matter was pending till 24.11.2014 for a period of more than three years and despite the same, defendant did not avail the opportunity to participate in the proceedings. Therefore, he urges that it was not open for the defendant to contend that he was not given full opportunity before the Small Causes Court. He further points out that from 2007 onwards, no rent has been paid for the premises. He invites the attention of the Court to the order dated 13.04.2015 passed by this Court, wherein this Court has made it clear that though petitioner was directed to pay arrears of rent to the respondent and time was granted till 10.04.2015 to pay the arrears of rent, the rental of the premises had not been paid and the petitioner was not diligent in prosecuting the matter. It was also made clear that pendency of the revision petition would not come in the way of the respondent executing the order of eviction and ejectment of the petitioner. He, also contends that the judgments relied on by the petitioner have no application to the facts of the present case.
9. Having heard the learned Counsel for both parties and on careful consideration of the entire materials on record, it is seen that there is no dispute with regard to the status of the petitioner as tenant of the premises. He does not also dispute the title and ownership of the plaintiff over the suit property. In the written statement, he has contended that he does not have the knowledge with regard to the assertion made by the plaintiff about his absolute title over the suit property. It is also evident from the proceedings of the Small Causes Court that several opportunities had been given to the defendant to participate in the proceedings and to adduce his evidence. In paragraph 7 of the judgment, the Court below has recorded that the defendant did not turn up for cross-examination since 01.07.2014. The Court below has noticed in the said paragraph that on 15.07.2014 and on 12.08.2014, defendant did not appear and therefore, defendant''s side evidence was closed. However, on 16.08.2014, he filed an application to re-open the evidence which came to be allowed, despite the same, he did not appear and another application was filed which was also allowed, even then defendant did not appear for cross-examination on 16.09.2014 and 18.09.2014, therefore, the matter was posted for arguments. It is thus clear that petitioner has not taken advantage of repeated opportunities given to him by the Court below.
10. Apparently, he has been occupying the premises without paying any rent and therefore, he is interested in protracting the litigation by taking up, at the first instance, the contention that the City Civil Court had no jurisdiction and subsequently, after the transfer of the case from the City Civil Court to Small Causes Court by not participating in the proceedings and by making applications after applications seeking to recall the matter and even when the case was re-opened, he did not participate in the proceedings. Though he has taken up a contention that Papanna was one of the lessors who inducted him in the premises, he has not denied the assertion made by the plaintiff that plaintiff was the absolute owner of the property. He has not established his assertion that Papanna was either the owner or the lessor. Nothing is produced by the defendant to show that Papanna had any interest in the property. If at all, the questions, other than the validity of notice of termination of the lease and consequent ejectment of the tenant from the premises had arisen for consideration, the defendant ought not to have taken up a plea that the City Civil Court had no jurisdiction to entertain the matter.
11. The fact that the defendant took up a specific plea stating that small causes court alone had jurisdiction to try the suit, made it clear that defendant did not want any other aspect to be considered in the matter. It is true the jurisdiction of the Small Causes Court depends upon the nature of the dispute that is raised and the same is ascertained from the plaint and the written statement. In the instant case, the defendant, as stated earlier, did not deny the title of the plaintiff. Mere fact that he sets up a plea that a sum of Rs. 33 lakhs had been paid by way of advance amount will not oust the jurisdiction of the Small Causes Court. At any rate, in the facts and circumstances of this case, having regard to the conduct of the defendant who has himself stated that it is the Small Causes Court which has to decide this matter and that the City Civil Court had no jurisdiction, which contention had been accepted and the suit was transferred to the Small Causes Court, cannot be permitted to now contend to the contrary.
12. The judgments on which the learned Counsel for the petitioner has placed reliance, have no application to the facts of the case as the only question that falls for consideration here is about the validity of the termination of lease and the ejectment of the petitioner. No question regarding the title of the landlord over the property arises as the same has not been denied. In addition to the above, it is to be stated here that right from 2007, petitioner has not paid any rent towards the rental of the premises and despite the order passed by this Court directing payment of rent, the same has not been paid. Therefore, the conduct of the defendant in not paying rent for nearly eight years also discloses that he is interested in only protracting the matter by taking technical pleas. Therefore, the revision petition being devoid of merits, is liable to be dismissed. Accordingly it is dismissed.
13. Learned Counsel for the petitioner, at this stage, submits that petitioner may be permitted to recover the advance amount paid in accordance with law by instituting separate proceedings. Counsel for the respondent also submits that they may be permitted to resist the claim and recover the rental payable in accordance with law. It is open for both parties to recover their dues in accordance with law.
