Hiremath, J.
1. The respondent D.P. Sharma is the owner of a building named 'Sunitha Bhavan' on Tippu Sultan Palace Road, at Bangalore. On 18-11-1982, he leased it out to the appellant Smt. D. Shakuntala for running a hotel-restaurant under a lease deed on a monthly rent, of Rs. 4,500/- for a period of 5 years. The appellant appears to have added some amenities like kitchen on the first-floor and a hotel called 'Hotel Kamadenu' was being run in the said premises by a partnership firm which appears to have later come into existence between the said D. Shakuntala and one A.M. Ahuja. It appears, in 1988 there was no smooth sailing for this hotel. There was labour, unrest and the hotel was being run under loss. The partnership even thought of closing it down. It appears, the employees of the hotel were against the closing down of the establishment and the partnership was not happy with them. A suit for injunction in O.S.No. 572/88 came to be filed before the City Civil Court against the employees of the hotel for a decree restraining them permanently from disturbing the peaceful possession of the partnership of the hotel and also from preventing ingress and egress to the same and preventing them from displaying slogans or banners or posters against the Management. Inter-alias it was alleged in the plaint that the defendants therein who were members of Hotel Karmlkara Sangha instead of settling their accounts and leaving the schedule premises had started squatting in the premises shouting slogans and carrying banners as the Management had decided to close down the hotel. They were also threatening to destroy and damage the property and harm the persons of the establishment. It was pleaded that the Management has inherent right to close down the establishment. The suit was filed on 2-2-1988 and on I.A-I for interim relief an order of ex parte injunction was made by the Court on 26-2-1988 as follows:
'The matter appears to be urgent. Object of granting injunction will be defeated by delay. Hence issue exparte T.I. as prayed for till next date.'
The prayer made in I.A.I. was to restrain the defendants, their agents, etc. from interfering with the plaintiff's peaceful possession and enjoyment of the schedule property and not to enter or remain or prevent the ingress and egress to the schedule premises. That suit is still pending.
2. O.S.No. 691/88 was filed before the same City Civil Court by the appellant D. Shakuntala against the respondent-landlord and owner of the premises for a permanent injunction restraining him from interfering with the plaintiff's peaceful possession and continued user of the schedule premises or the user thereof for running the hotel. In this suit filed on 9-2-1988, the plaintiff-appellant alleged that at the instance of the defendant-respondent a kitchen was added on the first-floor to prevent smoke from spoiling the building and this is at the cost of the plaintiff. After this was done, the defendant started demanding Rs. 750/- as additional rent over and above Rs. 4,500/- already agreed upon. The defendant also collected interest free advance of Rs. 25,000/- from the plaintiff. After the expiry of the lease period by efflux of time, after 5 years from the date of lease agreement, when there was a move from the plaintiff for extension of the lease, the defendant repelled that the case is governed by the Rent Control Act in force and therefore there was no need for fresh agreement extending the lease. Therefore, even after this expiry of lease period, the plaintiff continued to run the hotel. There was no forfeiture of her tenancy right. Due to labour unrest and high-handed behaviour of the employees, O.S.No. 572/88 was filed by the Hotel. That however does not touch anything about the leasehold right of the plaintiff under the defendant. Taking advantage of this litigation and the Interim order against the workers, the defendant was threatening to forcibly dispossess the plaintiff from the schedule premises without even approaching the Court under the Karnataka Rent Control Act of 1961. As the plaintiff apprehended high-handedness on the part of the defendant, the suit for the above relief was filed. The plaintiff also alleged that the defendant being a powerful person with lot of influence was likely to forcibly dispossess her from the suit premises. Even in this case, it appears, there was an exparte order of Injunction.
3. Having entered appearance the defendant contended by his written statement that the construction made by the plaintiff for running a kitchen over the first-floor is unauthorised and denied that he demanded additional rental of Rs. 750/- per month. In view of her clear admission by her pleading In O.S.No. 572/88, she is obliged in law to handover vacant possession of the same as she has obtained an interim order making a representation to the Court that she was closing down the business and was intending to handover possession of the premises to the landlord. There has been no renewal of the lease subsequent to expiry of 5 years period. Reference to the provisions of Karnataka Rent Control Act made by the plaintiff is false and vexatious. The hotel being run under heavy loss and reduced the plaintiff to a total financial incapacity it is no longer possible for the plaintiff to continue the hotel business. Even before the expiry of the lease period, understanding the financial difficulties of the plaintiff the defendant had approached her and sought to recover possession of the schedule premises, but she only took a stand that she would try out the business for a period of 5 years and then would vacate it. Without his notice, the plaintiff entered into a clandestine transaction with one Ahuja, a stranger, and filed O.S.No. 572/88 through him. Thus, the gist of his defence is that the hotel has been closed, that she has made her intention to deliver back the possession of the premises to the defendant in O.S.572/88 and, therefore, she cannot, file this suit.
4. He also made a counter-claim under Order 8 Rule 6 CPC with almost the same grounds as in the written statement as to the loss Incurred by the plaintiff, her intention to handover possession of the premises to him, and the prayer in the counter-claim is as follows:
(1) a mandatory injunction ordering and directing the plaintiff and anybody acting for her or on her instance or her business partners or executors or assigns to fulfill the commitment of handing over possession of the suit schedule premises to the defendant forthwith, without delay of even a single day and in the event of their failure pass an order to evict them or eject them and all others acting under and through or at the instance of the plaintiff from the suit schedule premises;
(2) for current costs after filing this counterclaim and from the date of filing this counterclaim at the rate of Rs. 500/- per day and for every day to be paid by the plaintiff and all others who act along with her to keep the defendant out of possession and such current costs at the rate of Rs. 500/- per day is to be ordered to be paid individually and severally by all such persons who join the plaintiff to keep the defendant out of possession of the suit schedule premises.'
Having filed this counter-claim, I.A.No. IV was filed by the defendant under Order 39 Rules 1 and 2 CPC requesting the Court that In view of the plaint In Q.S.No. 572/88, referred to above, a mandatory temporary injunction ordering the plaintiff to handover immediate possession of the premises be passed. It is also necessary to state here that when these interlocutory applications came to be considered, another suit O.S. 1065/88 filed by the defendant-respondent restraining the plaintiff herein from inducting any third party into the suit premises and also a H.R.C. Petition 605/88 before the Court of Small Causes at Bangalore filed by the present defendant for eviction against the plaintiff under Section 21(1)(h), (f), (c) & (e) of the Act which were pending.
5. The Court below disposed of the I.A.Nos. I, III & IV by the common order which is the subject matter in these appeals. By this order the ex parte order of injunction granted in favour of the plaintiff was vacated and I.A.IV for mandatory injunction directing the plaintiff to handover possession of the suit schedule premises to the defendant was allowed.
6. It is urged on behalf of the appellant-tenant that the Court below committed serious error in totally ignoring that it lacked jurisdiction to award possession of the suit premises when even a statutory tenant cannot be evicted without recourse to the provisions of the Karnataka Rent Control Act. The trial Court totally misunderstood the scope and amplitude of the decision of the Supreme Court in the case of RAVINDRA ISHWARDAS SETHNA v. OFFICIAL LIQUIDATOR, HIGH COURT OF BOMBAY : [1983]3SCR657 . Similarly the one reported from the case of GANGA DUTT v. KARTIK CHANDRA DAS AND ORS. : [1961]3SCR813 though applied to the facts of the instant case, did not assist the Court in making the impugned order. On an interlocutory application for mandatory injunction, the Court below ought not to have proceeded to award possession of the petition premises without any jurisdiction. On the other hand, it is contended for the respondent that the Court below was perfectly justified in passing the impugned order as the facts of the instant case are clearly governed by the decision in Ravindra Ishwarda's case (supra). The admissions contained in the plaint in O.S. 572/88 clearly reflected the state of affairs of the business of the appellant. It was being run under loss and the appellant had obtained temporary injunction against her employees representing to the Court that she wanted tc handover possession to the landlord of the premises. Therefore, she could not fall back on this representation made to the Court. Even though the respondent's Counsel did not dispute the proposition that an order of eviction could be made only under the Rent Control Act where the said Act did govern the parties, this is a peculiar case similar to the one that the Supreme Court had occasion to deal with in the case of Ravindra Ishwardas. The appellant, according to him, had become a statutory tenant and was protected only by the statute and had no independent interest in the demised premises and therefore the Civil Court cannot be said to have lost Jurisdiction to award possession.
7. The material averments in the plaint in O.S.No. 572/88 on which the respondent relies are contained in paras-5, 6, 7 and 10 of the copy of the plaint in O.S. 572/88. They are as follows:
'5. It is submitted that the plaintiff establishment started functioning in 4 years back after taking the schedule premises on lease. It is submitted that the plaintiff establishment, for all these years of nearly 4 years has been running under heavy loss due to competition by the surrounding restaurants and increased cost of labour, water, electricity, gas and wages of workmen etc.
6. The plaintiff submits that the defendants who were employed in the establishment, claiming to be the members of the Hotel Karmikara Sangha, have been making repeated demands for increased wages and other conditions of service,
7. ......The plaintiff submits that it became impossible for him to continue to run the establishment without incurring further loss and as he has no financial capacity to continue to run the establishment has taken the inevitable decision of closing down the establishment with effect from 1-2-88.
10. It is submitted that the plaintiff has to handover vacant possession of the schedule premises to its Lessor and has to remove all perishable items and furnitures and fixtures, then completing the formalities of the closure, it is submitted that the defendants are preventing the plaintiff from completing the formalities of the closure. It is submitted that if the plaintiffs are not allowed to complete the formalities, the plaintiff has to pay rent of Rs. 150/- per day unnecessarily thus causing financial loss.'
As already stated, the plaint also alleges that before handing over possession the plaintiff under the agreement of lease has to carry out repairs of the schedule premises before handing it over to the lessor, as per the contract and in case the defendant continued to hold threats to damage the property they cannot do so. It may be noted here that in the interlocutory application seeking interim Injunction the plaintiff never sought Injunction against the defendant in that suit restraining them from interfering with the act of the plaintiff handing over possession of the premises to the landlord. It confined itself to the prayer to restrain from interfering with its possession. Similarly in the main suit also the prayer is for a permanent injunction restraining them from interfering with the Hotel's possession of the premises. This has to be pointed out for the reason that the Injunction was not sought to restrain the defendant from interfering with her handing over possession of the premises to the landlord. Impliedly it is as though the firm itself wanted to continue to occupy the premises. The trial Court in its impugned order attached considerable importance to these averments fn the plaint while referring in extenso to the decision of the Supreme Court in Ravindra Ishwardas's case. At para-10 of its order it addressed itself to the point whether the landlord can ask for the possession of the premises in a civil suit or whether it is necessary for him to approach the Rent Control Court by filing a petition for eviction. As the entire order is based on this decision of the Supreme Court it is necessary to deal with the facts of that case and observations made therein by the Supreme Court. Before their Lordships of the Supreme Court, the provisions of Section 457 of the Companies Act and Article 133 of the Constitution of India were for consideration. In a winding up petition before the Company Judge of the Bombay High Court, an Official Liquidator came to be appointed as Liquidator of the Company to take possession of the assets of the Company and also possession of the office premises of the Company. That Company in the winding up proceedings was carrying on the business of floating prize chit scheme and it had come to a stand-still when winding up was ordered. As the Liquidator could not let out on lease or licence, the Court gave a direction that the premises be given on caretaker basis after obtaining a proper document on a compensation not less than Rs. 2,250/- per month. The landlord maintained that the Company Court as well as the Liquidator could not have handed over possession to the caretaker when the business of the Company could no longer be continued or carried out by the Liquidator. At para-9 of the Report, the Supreme Court observed as follows:-
'For the purpose of the present proceedings it is enough for us to say that the Company and its Liquidator no more need the premises for its own use. The Liquidator does not need the use of the premises for carrying on the winding up activities of the Company because he sought direction for parting with possession. We are not impressed by the learned Judge saying that there is some third mode of parting with possession of the premises exclusively in favour of the second respondent, namely, caretaker's agreement which appears to us to be a facade to wriggle out of the provisions of the Rent Act. The Rent Act is no doubt enacted for protecting the tenants, and indisputably its provisions must receive such interpretation as to advance the protection and thwart the action of the landlord in rendering tenants destitutes. But this does not imply that the Court should lend its aid to flout the provisions of the Rent Act so as to earn money by unfair and impermissible use of the premises. And that is what the Liquidator sought to do and the Court extended its help to the Liquidator. This, in our opinion, is wholly impermissible. The learned Company Judge could not have authorised the Liquidator to enter into such an agreement and therefore his order is liable to be set aside.'
At para-11 it pointed out that the only course open to the learned Company Judge was to direct the Liquidator to surrender possession to the landlord and save recurring 'liability to pay rent, because the learned Judge could not have permitted holding on to possession of the premises, not needed for efficiency carrying on winding up proceedings. It may be mentioned here that the Company Court had become a custodia legis of the assets and properties of the Company and nothing could be done without its direction. Virtually it stopped into the shoes of the tenant and had to take a decision whether to surrender possession of the premises used for the business of the Company that was ordered to be wound up or to surrender the same to the landlord. When the Liquidator could not any longer do the business of the Company, it was thought proper that the possession should be surrendered to the landlord. Therefore, the decision of the Company Court to surrender possession of the tenanted premises could virtually be a decision of the tenant-Company itself under the peculiar circumstances and conditions obtained in that case. Added to this the landlord had come forward to pay Rs. 1,50,000/- into the Court for- being paid to the creditors of the Company. By delivering possession to the caretaker, the Liquidator might have been able to realise atleast Rs. 25,000/- per year. The accounts of the Company in liquidation were not brought on record and this was a rough estimate that the Supreme Court made with regard to the liabilities of the Company to its creditors. Even the Liquidator had no unbridled discretion to carry on the business of the Company under Section 457 of the Companies Act but this power can be exercised only with the sanction of the Court, Therefore, the Supreme Court under the peculiar circumstances obtaining in this case only directed that the possession should be handed over by the Liquidator to the landlords-appellants therein,, The. jurisdiction of the Civil Court did not at all come up for consideration in that case, When Sections 13 and 15 of the Bombay Rent Act prohibited giving possession of the premises on licence or on sub-lease, in the opinion of the Supreme Court, the learned Company Judge spelt out a third way of parting with the possession of the Liquidator, namely, to give the premises to the 2nd respondent therein under a caretaker's agreement. That was only an euphemism for collecting compensation which was nothing else but the charge for use and occupation of the premises exclusively by the 2nd respondent.
8. Though the trial Court made reference to this decision and relied on it, I must say that it completely misunderstood the scope of this decision. In para-10 of his order, the learned trial Judge in this case has said, -
'In the above decision the, Hon'ble Supreme Court has made it very clear that when the business has come to a grinding halt the premises are of no use to the tenant and as such he is required to handover the possession to the landlord. Further it is stated that in such a case it is not necessary for the landlord to approach the Rent Control Court for eviction of the tenant. In the case law reported in : [1961]3SCR813 it is held that the statutory tenant is only entitled to continue in possession of the premises so long as the conditions which justify a lessor in obtaining an order of eviction against the exercise of jurisdiction by the Court is removed, the right to obtain possession by the lessor under the ordinary law springs Into action and the exercise of the lessor's right to evict the tenant will not, unless the statute provides otherwise be conditioned. In view of the law laid down in these decisions it is very clear that the statutory tenant has got the right to continue in possession only so long as he require premises. When once the requirement by the tenant ceases the statutory tenant's right comes to an end and he is obliged to surrender possession to the landlord.'
Very strangely the learned Judge states that a tenant is obliged to surrender possession to the landlord the moment the requirement of the tenant ceases. This is rather a sweeping proposition which does not find favour under any existing law. The learned Judge further observes thus:
'But in my opinion this provision does not come in the way of landlord seeking possession of the premises from a tenant through Civil Court on the ground that the tenant no longer requires premises. The question of the landlord approaching the Rent Control Court comes in only when the landlord wants to get possession on one or the other grounds mentioned in Section 21(1) of the Karnataka Rent Control Act. In the instant case the defendant is not seeking possession of the premises in any one or more grounds contained in Section 21(1). His request is based on the fact that the plaintiff who has already closed the business on 1-2-1988 no longer requires schedule premises. In such a case as laid down very clearly by the Supreme Court the ordinary Civil Court gets jurisdiction to direct the tenant to deliver possession to the landlord.'
This observation completes the misreading of the decision of the Supreme Court referred to above.
9. The opening words of Section 21(1) of the Karnataka Rent Control Act of 1961 are very clear and unambiguous. They say, -
'Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or other authority in favour of the landlord against the tenant provided that the Court may on an application made to it make an order for recovery of possession of the premises on one or more Of the following grounds only, namely.......'
The grounds on which a decree or order for recovery of possession of tenanted premises can be made are enumerated at Clauses (a) to (p) of Sub-section (1) of Section 21 of the Act. Clause (o) is particularly relevant as it relates to the ground that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months Immediately preceding the date of the application. Clause (a) relates to non-payment of rent and If the tenant has not paid rent during the period referred to therein the ground for recovery of possession could be said to have been made out. The Court below ignored that in O.S. 572/88 the prayer made was one for permanent injunction against the employees of the Hotel. Even though a contractual tenancy comes to an end by efflux of time and the tenant becomes a statutory tenant as made clear In the case of Ganga Dutt (supra), the Rent Control Act does not make a distinction between a statutory tenant and a contractual tenant as far as the powers of a Court to make a decree or order for possession are concerned. In a way Section 21(1) creates a bar against the Court making any decree for eviction unless any one of the grounds enumerated thereunder is available to the landlord to seek eviction of his tenant. The averments made in the plaint and the admissions which are sought to be used by the Court below under Section 58 of the Evidence Act could at best be available in a proceeding against the tenant for eviction. Such an order on I.A.IV for delivery of possession came to be made in a counterclaim made by the defendant-respondent. My attention was drawn by the learned Counsel for the respondent to a decision of the Supreme Court in the case of LAXMIDAS v. NANABHAI : [1964]2SCR567 wherein the Court held that a right to make counter-claim is statutory and a counter-claim is not admissible in a case which is admittedly not within Order 8 Rule 6. However, there is nothing in law which precludes a Court from treating a counter-claim as a plaint in a cross-suit. It is in this counter-claim that I.A.IV for mandatory injunction came to be made. The Court below ought to have seen if it had jurisdiction to entertain the counter-claim as it related to the jurisdiction of a Rent Control Court seeking possession of tenanted premises. The only ground made out in support of I.A.IV was that in the plaint in O.S. 572/88 the appellant herein had made out a case that she intended to deliver possession of the premises to the landlord. The Court below ought to have found that there were certain important points for investigation and the question of jurisdiction was seriously involved. This was not the case of the tenant surrendering possession or there being any promise from the tenant to the landlord to handover possession. In a dispute between a tenant and its employees this assertion was made and whether it was sufficient to order eviction of the tenant was a very material question that requires decision on merits of the case. If a counter-claim is made before the Court which prima facie lacked jurisdiction to grant the relief, then the Court called upon to exercise such jurisdiction should withhold exercising the same till the jurisdiction Itself is determined. In the instant case, there is no prima facie case in favour of the landlord-respondent to seek eviction of a tenant, even though she was a statutory tenant, when the Court inherently lacked jurisdiction as a Civil Court to award possession of the premises as there is a separate forum created under the Rent Control Act. In my view, There fore the Court below was rather hasty in passing the impugned order on I.A.IV by way of mandatory injunction directing the tenant to handover possession of the suit premises to the landlord. If the tenant were to handover possession voluntarily by surrendering the same to the landlord, there is no need to apply for eviction and that would only be a voluntary act of the tenant and only formality of such surender being necessary to be completed. It is further necessary to note that it was one Ahuja claiming to be a partner of 'Hotel Kamadenu who had filed O.S. 572/88, but the premises was taken on lease by the present appellant in her individual name. In other words, it is not 'Hotel Kamadenu' or any other partnership firm that was the tenant. Whether under such circumstances the averments made by a partner in a suit against its employees could be made use of by the landlord against his tenant is a material point requiring consideration. As already stated, a suit is already pending at the instance of the respondent restraining the appellant from Inducting any third party in the petition premises. Even the landlord has filed a separate H.R.C. petition seeking eviction on some of the grounds under Section 21(1) of the Rent Control Act. These of course could not have been of much consequence if the Court below as a Civil Court had jurisdiction to award possession of the suit premises to the landlord. As I have found that this order is prima facie without jurisdiction the same cannot be upheld.
10. Under I.A.I. the tenant had applied for temporary injunction during the pendency of the suit from Interfering with her possession. That prayer ought to have been granted by allowing I.A.I, and rejecting I.A.III for vacating the ex parte order already granted. It is patently clear from the various averments made by the landlord-respondent in his written-statement, counterclaim and I.A.IV that he is bent upon disturbing possession of the tenant-appellant. Therefore, unless the tenant-appellant is evicted in due course of law, she needs protection of the Court. The appeals therefore have to be allowed. Accordingly the appeals are allowed and the order of the trial Court directing delivery of possession of the suit premises to the landlord-respondent on I.A.IV is set aside. Similarly the order of the trial Court on I.A.Nos. I & III is also set aside and the appellant is entitled to protect her possession of the suit premises during the pendency of the suit. It was brought to my notice during arguments that without any loss of time soon after the trial Court made the impugned order the landlord-respondent proceeded to take actual possession of the suit premises and has in fact taken possession of the same. On filing of this appeal, the appellant got an order from this Court to maintain status quo. If that is the position, the appellant is entitled for restitution of possession of the suit premises forthwith and the appellant is entitled to continue in possession of the premises during the pendency of the suit. Respondent shall deliver back possession of the suit premises to the appellant forthwith and he is restrained from interfering with her possession during the pendency of the suit.