Ramachandran Vs. Khaleeq Ahmed - Court Judgment

Excerpt:
karnataka rent control act, 1961 (karnataka act no. 22 of 1961) - sections 21 & 29(4) : civil procedure code, 1908 (central act no. 5 of 1908) - sections 37 & 38 : karnataka small causes courts act, 1964 (karnataka act no. 11 of 1964) - court of small causes being constituted as court having jurisdiction under karnataka rent control act, is the court having juris-diction to execute orders passed by it.;it is no doubt true that there is nothing specific in the rent control act to indicate as to whether the court of small causes which has passed the eviction orders has got the jurisdiction to execute them. the legislature in its wisdom has not made a reference to it in the rent control act, because the proceedings under the rent control act would be governed by the code of civil procedure itself. sections 37 and 38 of c.p.c. make it abundantly clear that the court that passed the decree would have the power to execute its own decree or order. if the court of small causes has been constituted as a court having jurisdiction to entertain and hear the case filed under the rent control act, that court alone would have the jurisdiction to execute the orders passed by it.;the court under the rent control act, insofar as bangalore city is concerned, is not a separate court, i.e., separate from the court of small causes established under the rent control act. one of the courts that has been conferred with jurisdiction under the rent control act is a court of small causes in bangalore city. therefore, ultimately, it is the court of small causes that will have to execute orders that have been passed by it under the rent control act. - code of civil procedure, 1908. order 6 rule 17: [a.n. venugopala gowda, j] amendment of written statement amendment seeking the defence on the ground that the previous advocate colluded with the other side rejection of held, amendment should be necessary for the purpose of determining the real question in controversy between the parties. amendment was sought before the commencement of trial of the suit. the proposed amendment is necessary to determine the real questions in controversy between the parties. trial court has failed to exercise the jurisdiction vested in it and the illegality is apparent. order of trial court was set aside and amendment was allowed. - on the other hand, the said ruling has clearly laid down that when there is no provision made in the rent control act, courts will have to follow the provisions of the c.kulkarni, j.1. this is a plaintiff's appeal against the judgment and decree dated 18th march 1987 passed by the 16th additional city civil judge, bangalore city, in o.s.no. 3681/ 1985 dismissing the same.2. the defendant-landlord had filed a h.r.c. case in h.r.c.5036/1980 against the present plaintiff in the court of the small causes, bangalore city, for eviction under section 21(1)(a) of the karnataka rent control act. an application was filed by the present defendant in the said h.r.c. case under section 29 of the karnataka rent control act on the ground that the defendant had not paid the rental arrears and had not been paying rent. the small causes judge after hearing the said h.r.c. case stopped the further proceedings under section 29(4) and ordered eviction of the plaintiff, and ordered him to put the landlord in possession of the property. that order passed under section 29(4) has admittedly become final.3. the defendant-landlord sued out execution in execution case no. 4529/1983 for executing the order passed under section 29(4) of the karnataka rent control act, which has become final.4. the learned counsel mr. rama rao for the plaintiff-appellant now submitted that his client had appeared on the execution side and raised the contention that the court of small causes had no power to execute the decree and put the landlord in possession of the immoveable property under the civil procedure code. he also submitted that his contention on execution side was that the court of small causes, in which the execution had been filed had to transfer the decree to the regular city civil court, which alone was competent to execute the decree and order delivery of possession.5. sri rama rao submitted that his contentions were overruled by the small causes court and he had filed the revision against that order passed by the small causes court and the said revision was withdrawn. after withdrawing the revision, the present suit has been filed for an injunction restraining the landlord from executing the decree in the court of small causes on the ground that small causes court has no jurisdiction to deal with execution of the eviction decree and that the only court that can handover possession is the ordinary civil court.6. the lower court framed the following issues:'1. whether the court of small causes, bangalore has got jurisdiction to execute the order of eviction of the plaintiff passed in hrc. 5306/80 on 30-6-82?2. whether the action taken by the defendant to evict the plaintiff in ex. case no. 4529/83 in the court of small causes is beyond the jurisdiction of the said court?3. whether the plaintiff is entitled to for the declaration and permanent injunction as sought?'7. the lower court after hearing the advocate came to the conclusion that the court of small causes had got jurisdiction to execute the order of eviction passed in the hrc case and that the action of the defendant to evict the plaintiff in the said execution case in the court of small causes was within the jurisdiction of the court of small causes. after recording a finding on issue nos. 1 and 2 it held that the plaintiff was not entitled to the declaration and permanent injunction and it dismissed the suit. hence, this appeal.8. the learned counsel sri rama rao advanced very elaborate arguments and in great detail before me. the main thrust of his argument was that under the k.r.c. act 1961 so far as the bangalore city is concerned, it was the court of small causes that had got the jurisdiction to hear the eviction cases. according to him, orders of eviction passed by the court of small causes under k.r.c. act, though filed in the court of small causes, should be transferred to the regular city civil court, which alone was competent to execute the orders of eviction.9. section 3(d) of the k.r.c. act reads as :'(d) 'court' means,-(i) in respect of the area comprised within the limits of the city of bangalore as defined in the bangalore city civil court act, the court of small causes;'therefore, under the k.r.c. act, so far as the bangalore city is concerned, it is only the court of small causes that has got exclusive jurisdiction to hear the case filed under the k.r.c. act. the jurisdiction of the small causes court to entertain and hear the case filed under the k.r.c. act cannot be disputed and is not disputed before me, even by the learned counsel sri rama rao. it is also not disputed before me that the court of small causes is a civil court, though with limited jurisdiction, within the meaning of the karnataka small causes courts act, 1964.10. once it is held that the court of small causes is a civil court, the argument advanced by the learned counsel sri rama rao would not hold the floor at all.11. section 37 of the civil procedure code reads as:'37. definition of court which passed a decree. the expression 'court which passed a decree' or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include.(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance, and(b) where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.explanation. - the court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that court to the jurisdiction of any other court; but in every such case, such other court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.therefore section 37 cpc leaves no doubt in my mind that the court which passed the decree, would have the jurisdiction to execute the decree passed by it.12. section 38 of cpc reads as:'38. court by which decree may be executed :- a decree may be executed either by the court which passed it, or by the court to which it is sent for execution.'therefore, section 38 also is quite specific that the court which passed the decree or the court to which it is sent for execution, have got the jurisdiction to execute that decree.13. sri rama rao submitted that if this court is going to consider sections 37 and 38 it must also consider section 42 of c.p.c.section 42 enumerates the powers of the court in executing transferred decree. the sum and substance of the principle underlying section 42 is that even the transferee execution court would have the same jurisdiction as the one which the court that passed the decree has got. therefore, section 42 will not tilt the balance at all in the present case.14. then the learned counsel sri rama rao drew my attention to order 50 of c.p.c. order 5o reads as :'1. provincial small causes courts.-the provisions hereinafter specified shall not extend to courts constituted under the provincial small causes courts act, 1887 (9 of 1887) or under the berar small cause courts law, 1905 or to courts exercising the jurisdiction of a court of small causes under the said actor law or to courts in any part of india to which the said act does not extend exercising a corresponding jurisdiction that is to say -(a) so much of this schedule as relates to -(i) suits excepted from the cognizance of a court of small causes or the execution of decrees in such suits;(ii) the execution of decrees against immoveable property or the interest of a partner in partnership property;(iii) the settlement of issues; and(b) the...................................orders :-order 50 of cpc lays down that the procedure laid down by the provincial small causes courts shall not apply to suits which have been excepted from the jurisdiction of the small causes courts, or to the executions that might have been filed for executing the decrees passed in such courts. therefore order 50 will not in the least throw any light on the point involved in the present suit. on the other hand, in my opinion, there is nothing in order 50 to indicate how the small causes courts should execute the orders passed by itself.15. the court of small causes has been defined in section 2(b) of the karnataka small causes courts act, 1964, as:'2. definitions.- in this act, unless the context otherwise requires,-(a)............................................(b) 'court of small causes' means a court of small causes constituted or deemed to have been constituted under this act and includes any person exercising jurisdiction under this act in any such court,'it is not disputed that the court of small causes in bangalore city is the one constituted under the karnataka small causes courts act, 1964 read with the city civil courts act. it is also quite obvious and apparent on persual of the provisions of the karnataka small causes courts act, 1964 and the civil procedure code and the civil courts act that the court of small causes is a civil court. therefore, if any decrees or orders are passed by the court of small causes even in the bangalore city, it alone has to execute the decrees or the orders passed by it.16. then the learned counsel sri rama rao drew my attention to section 8 of the small causes courts act, which reads as:'8. cognizance of suits by courts of small causes.- (1) a court of small causes shall not take cognizance of the suits specified in the schedule as suits excepted from the cognizance of a court of small causes.(2) subject to the exceptions specified in the schedule and to the provisions of any law for the time being in force all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a court of small causes:provided that the state government, in consultation with the high court, may by notification, direct that all suits of which the value does not exceed ten thousand rupees shall be cognizable by a court of small causes mentioned in the notification.'17. a persual of section 8 goes to show that the state legislature has got the power to exclude certain civil matters from the cognizance of the small causes court. if the state legislature has got the power to exclude some civil matters from the cognizance of the court, it follows that it has also got the power to include any suit of civil nature also within the cognizance of small causes courts. if it is so, then the jurisdiction of small causes court constituted under the rent control act to entertain and hear the case filed under the rent control act, cannot be questioned at all.17. then the learned counsel sri rama rao referred me to sections 26 and 27 of the small causes courts act, reads as:'26. application of act and code to courts so invested as to two courts - a court invested with the jurisdiction of a court of small causes with respect to the exercise of that jurisdiction, and the same court with respect to the exercise of its jurisdiction, in suits of a civil nature which are not cognizable by a court of small causes, shall, for the purposes of this act, and the code, be deemed to be different courts.'section 26, therefore, applies to the case of a regular civil court, which has also been invested with the small causes courts powers. section 26 laid down that if the same court has been invested with the small causes jurisdiction, the court, which exercises such small causes jurisdiction shall be deemed to be different from the regular civil court, exercising the original jurisdiction. therefore, section 26 would not be of much help to the learned counsel sri rama rao.section 27 of the small causes courts act reads as:'27. modification of code as so applied.- not withstanding anything in section 25 or section 26 --(a) when in exercise of the jurisdiction of a court of small causes, a court invested with that jurisdiction sends a decree for execution to itself as a court having jurisdiction in suits of a civil nature, which are not cognizable by a court of small causes, or(b) when a court in the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a court of small causes, sends a decree for execution to itself as a court invested with the jurisdiction of a court of small causes, the documents mentioned in rule 6 of order xxi of the code shall not be sent with the decree, unless in any case the court, by order in writing requires them to be senttherefore, section 27 also will not be of any help muchless material to the learned counsel sri rama rao.18. it is no doubt true there is nothing specific in the rent control act to indicate as to whether the court of small causes which has passed the eviction orders has got the jurisdiction to execute them. the legislature in its wisdom has not made a reference to it in the rent control act, because the proceedings under the rent control act, would be governed by the code of civil procedure itself. as already stated above sections 37 and 38 of c.p.c. make it abundantly clear that the court that passed the decree would have the power to execute its own decree or order. if the court of small causes has been constituted as a court having jurisdiction to entertain and hear the case filed under the rent control act, that court alone would have the jurisdiction to execute the orders passed by it. that the order passed under the rent control act amounts to a decree has been made clear by the decision of this court in g. ramakrishna v. y. varadappa, : air1985kant182 . there is nothing in the said ruling to show that the rent control court that passed an eviction order would not have the jurisdiction to execute its order. the principle laid down in the said case is that the order passed under the rent control act would amount to a decree and it is capable of execution. on the other hand, the said ruling has clearly laid down that when there is no provision made in the rent control act, courts will have to follow the provisions of the c.p.c to give effect to the orders or decrees passed by them. the order in question is a decree and execution petition is maintainable. therefore, the argument of the learned counsel sri rama rao in drawing support from the said decision in respect of his contention that the small causes courts has no jurisdiction to execute the order of eviction, merits to be rejected.19. the court under the rent control act, in so far as bangalore city is concerned, is not a separate court, i.e., separate from the court of small causes established under the rent control act. one of the courts that has been conferred with jurisdiction under the rent control act is a court of small cases in bangalore city. therefore, ultimately, it is the court of small causes that will have to execute orders that have been passed by it under the rent control act.20. then the learned counsel sri rama rao referred me to mandir sita ramji v. governor of delhi, : [1975]1scr597 . a portion of the judgment on which he relied is found at page 1870, which reads as:'6.................when a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. when the legislature has spoken, the judges cannot afford to be wiser.'in this case, the judges are not trying to be wiser than the law, by which they are bound. what the judge has purported to do in this case is to follow the procedure prescribed by the law itself. the judge is not questioning the wisdom of the legislation or the procedure laid down by the legislature. what the judge has done in this case is only an attempt to follow the procedure in its strictest possible sense. therfore, it cannot be said to be a case, wherein the judge has tried to wiser than the procedure or the law itself.21. as already indicated above, the court of small causes, which has been invested with the jurisdiction under the rent control act to pass the decrees or the orders of eviction, would alone have the jurisdiction to execute the orders of eviction, as pointed out above. therefore it is a case of stricter compliance with the procedure by the judge. therefore, the said decision of mandir sita ramji, : [1975]1scr597 relied on by the learned counsel will not, in my opinion, held him in the least.22. then the learned counsel sri rama rao referred me to p.d.m. reddy v. p.a. rao, : [1975]2scr32 . a portion of para-12 of the said judgment reads as:'12............if there is want of jurisdiction the whole proceeding is coramanon judice...............'if anything has been done by a court without jurisdiction, it does follow that anything done by it without jurisdiction is null and void ab initio. as already pointed above, it is the court of small causes that has got jurisdiction to pass order of eviction and it is the court of small causes alone, which as per the provisions of the code of civil procedure and the small causes courts act has jurisdiction to execute the order. therefore, his reliance on para-12 in the said case, : [1975]2scr32 will not help in the least.23. at this stage, the learned counsel sri rama rao submitted that his client should be given some reasonable time to handover the possession. the eviction case is filed in 1980. the execution has been sued out in the year 1983.24. taking into consideration that the order sought to be executed is one under section 21(1)(a) and taking into consideration that the plaintiff in this suit has been in possession of the property notwithstanding the passing of the eviction order long back, i think that the interest of justice would be met if he is given time till 31st december 1987 to handover possession.25. the executing court i.e., the court of small causes should keep the execution pending till 31st december 1987 and should thereafter proceed with the execution.26. in the result, there is no substance in the appeal and it is dismissed at the stage of admission.