Sarojamma W/O Narasaiah Vs. K.M. Venkatesh - Court Judgment

Excerpt:
(a) karnataka small causes courts act, 1964 - sections 8, 9 and article 4(a) to (c) to the schedule of-ejectment of tenants of the premises to which karnataka rent act, applies-jurisdiction of the small causes court to take cognizance-held, the small causes court can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which karnataka rent act applies and not in respect of the tenants/persons who occupy other premises to which the act does not apply and whose tenancy has been determined or has come to an end either by efflux of time or by withdrawal of the same.;(b) small causes courts act, 1964 - suit for ejectment and for rent-no prayer for mesne profits, damages and/or compensation-the valuation of the same being within the pecuniary jurisdiction-to the premises to which karnataka rent act is not applicable-cognizance by the small causes court-held, in respect of the ejectment of the tenants to the premises to which the karnataka rent act does not apply, the relief would have to be sought for by filing an appropriate suit before the city civil court which alone can entertain such suits even if bare ejectment or ejectment and arrears of rent is sought.;(c) karnataka small causes courts act, 1964-suit for ejectment and damages under-premises measures more than 14 sq. meters and monthly rent is rs. 1600/-jurisdiction of the small causes court under-on facts, held, since the premises measures more than 14 sq. meters and being outside the purview of the rent act, the small causes court could not have taken congnizance and as such the judgment under revision is not sustainable-hence, the matter is remitted to the small causes court to return the plaint to the plaintiff to present it before the appropriate forum.;revision petition is allowed. - karnataka small causes courts act, 1964 [k.a. no. 11/1964] sections 8 & 9 & article 4(a) to (c) of schedule: [s.r. bannurmath & a.s. bopanna, jj] jurisdiction of small causes court suit for ejectment of tenant of the premises to which karnataka rent act applies held, small causes court can take cognisance only of such suits which are filed seeking ejectment of tenants of the premises to which karnataka rent act applies and not in respect of tenants who occupy other premises to which the rent act does not apply and whose tenancy has been determined or has come to an end either by efflux of time or by withdrawal of the same. sections 8 & 9 & article 4(a) to (c) of schedule: jurisdiction of small causes court suit for ejectment and rent no prayer for mesne profits, damages and/or compensation valuation of the same being within the pecuniary jurisdiction premises not covered by karnataka rent act held, in respect of ejectment of tenants of the premises to which the karnataka rent act does not apply, the relief would have to be sought for by filing an appropriate suit before the city civil court which alone can entertain such suits even if bare ejectment or ejectment and arrears of rent is sought. sections 8 & 9 & article 4(a) to (c) of schedule: jurisdiction of small causes court suit for ejectment of tenant and damages premises measuring more than 14 sq. meters and monthly rent being rs.1,600/- held, since the premises measures more than 14 sq. meters and being outside the purview of the rent act, the small causes court could not have taken cognisance and as such the judgment under revision is not sustainable. hence, matter remitted to small causes court to return the plaint to the plaint to present it before the appropriate forum. - in so far as the position that even the said non-excepted suits which are permissible to be cognizable before a small causes court will have to be within the pecuniary jurisdiction of the small causes court as provided under section 8 of the act is well accepted and there is no confusion. visweswara, learned senior counsel is not clearly indicated. , either by trespass, holding hostile possession, adverse possession and the like and in such circumstances, the owner of the property loses actual possession of the property. a close perusal would indicate that even though the legislature has permitted suits for ejectment before a small causes court, the same has not been let loose like a unruly horse to run amuck but the same is controlled by the reins attached to it in sub-articles (a), (b) and (c). as such it is necessary to understand the limitations provided therein even while entertaining a suit for ejectment. even though the said decision was with regard to he entitlement of the licencee to seek renewal of the licence to run a cinema house and in such circumstance, the hon'ble supreme court held that after the landlord has determined the lease, the licencee would not have the right to seek for grant of licence since his possession is wrongful, the said decision would render insight to the fact that such possession is not lawful as like that of a statutory tenant. air2001sc3580 to contend that the tenant under the rent act as well as the lessee whose lease has been determined stand almost on the same footing and therefore a distinction cannot be made for the purpose of jurisdiction. therefore the said decision is of no assistance to place the tenant under the rent act as well as the lessee whose lease has been determined on the same pedestal. at this stage, we would do well to pause and notice all the decisions of the learned single judge on this subject in the case of baduvakunhibeary v.orders.r. bannurmath, j.1. at the request of the learned single judge, large number of civil revision petition have been referred to this bench by the directions of the hon'ble chief justice.2. though the referral request of the learned single judge does not indicate as to what is the order of reference or what question of law is required to be decided by a division bench, since after hearing the learned counsel appearing in these cases, it appears to us general principles in so far as jurisdiction of the small causes courts entertaining a suit for ejectment, as laid down in few of the decision referred in this order, requires consideration.3. as no specific referral order and question for decision is formulated by the learned single judge, we have taken his case as a lead case and discussed the scope, jurisdiction and enquiry of small causes courts in entertaining a suit for ejectment, carved out of the exception to the schedule under small causes courts act. the sequence leading to the same are that the respondent/landlord in this case was initially before the city civil court seeking for a decree of ejectment, arrears of rent and damages at the rate of rs. 4,000/- per month against the petitioner/tenant. while the matter was pending in o.s. no. 9623/1999, the civil court by its order dated 9-1-2003, taking note of a decision rendered by a learned single judge of this court in the case of ramesh p. seth v. krishnamurthy : ilr2002kar565 ordered return of the plaint for presentation to the court of small causes, bangalore. subsequently the court of small causes registered the said suit in o.s. no. 161/2003 and by its judgment and decree dated 30.10.2003 directed the petitioner/tenant herein to vacate and deliver vacant possession of the suit premises to the respondent/landlord within three months. the petitioner/tenant was therefore before this court in this revision petition which was at the first instance heard and disposed of by order dated 16-9-2004 reported in : ilr2004kar4931 , wherein this court dismissed the revision petition and affirmed the judgment and decree of the small causes courts. one of the issues before the learned single judge was with regard to the jurisdiction of the small causes court to entertain the said suit. in this regard, the learned single judge referred to the earlier decisions of this court wherein a different view had been expressed but proceeded further to take another view. the order passed in this petition on 16-9-2004 was assailed by the petitioner/tenant before the hon'ble supreme court in civil appeal no. 3376/2006 (arising out of slp (c)no. 1637/2005). the hon'ble supreme court however without adverting to the merits of the case, only on propriety, set aside the order dated 16-9-2004 and remitted the case back to the high court for fresh decision in accordance with law. while doing so, the hon'ble supreme court had indicated that it was open for the learned single judge to refer the matter to a division bench. on such remand, this revision petition was once against listed before the learned single judge and the learned single judge in view of the order passed by the hon'ble supreme court has thought it fit to refer the matter to the division bench. accordingly the matter having been placed before hon'ble the chief justice, who in turn has referred and directed the case to be placed before us.4. the narration of the above facts would indicate that no specific question of law has been referred. further, the contrary view taken by the learned single judge in this petition is also not in existence in view of the hon'ble supreme court setting aside that order. however after this revision petition was referred to this bench, several other revision petitions wherein the question of jurisdiction of small causes court had been raised, all have been referred to this bench at the request of the learned single judge.5. therefore the issue which essentially requires to be decided by us is as to the jurisdiction of the small causes court to entertain a suit for ejectment of a tenant in a premises to which the karnataka rent act, 1999 ('the rent act' for short) is not applicable and the tenancy is determined or has come to an end by efflux of time.6 this being the question of law to be decided, we have at the outset thought it fit to consider the same without adverting to the individual factual matrix involved in each of the cases referred but to take this case as a last case and consider the legal position so that it would apply to the facts involved in each case including the facts in this case. it is in this context, that we have heard all the learned counsel who represent the parties in the different revision petitions which have been referred to this bench including the learned counsel appearing for the parties in this petition.7. on hearing the learned counsel and keeping in view sections 8, 9 and article 4(a) to (c) to the schedule of karnataka small causes courts act ('the small causes act' for short) the following three propositions arise for consideration viz.,propositions for consideration:proposition no. 1:- can small causes court take cognizance of only such suits which are filed seeking ejectment of tenants of the premises to which the karnataka rent act applies and not in respect of tenants who occupy the premises and whose tenancy has been determined or come to an end since in such case the remedy is only before the civil court?proposition no. 2:- can small causes court take cognisance of suits filed seeking ejectment and rent even in respect of the premises to which karnataka rent act is not applicable, subject to there being no prayer for mesne profits, damages and/or compensation, provided the valuation of the same being within the pecuniary jurisdiction?proposition no. 3:- can small causes court take cognisance of suits filed seeking ejectment, rent, damages mesne profits etc., even in respect of the premises to which karnataka rent act is not applicable, provided the valuation of the same being within the pecuniary jurisdiction?8. in this backdrop, we have heard sri g.s. visweswara, sri h.l. tiku and sri s.r shankar, learned senior counsel, sri shekar shetty, sri laxminarayanarao, sri k. suryanarayana sampath anand shetty, sri ravindranath kamath, sri jayaraj, m/s anuradha, sri b.m. arun, sri abhinav and ms. jayna kothari, learned counsel on the above noted propositions. the respective arguments advanced are noticed at the appropriate stage.relevant provision under consideration9. in respect of all the propositions section 8 and 9 as also the article 4 to schedule of the karnataka small causes courts act has been extensively referred by all the learned counsel and as such it is necessary to notice the said provisions which read as hereunder: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 (twenty-five thousand) 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 (three thousand) rupees shall be cognizable by a court of small causes mentioned in the notification.9. exclusive jurisdiction of courts of small causes.- save as expressly provided by this act or by any other law for the time being in force, a suit cognizable by a court of small causes shall not be tried by any other court having jurisdiction, within the local limits of the jurisdiction of the court of small causes by which the suit is triable.schedulesuits excepted from the cognizance of court of small causes (see section 8(4) a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit for ejectment where-a) the property has been let under a lease or permitted to be occupied, by a written instrument or orally, andb) the court of small causes would be competent to take cognizance of a suit for the rent of the property, andc) the only substantial issue arising for the decision is as to whether the lease has been determined by efflux of the time limited thereby or has been determined by a notice in accordance with the law for the time being in force in respect of such lease, or the permission to occupy has been withdrawn.a perusal of the above provisions would indicate that vide section 8, apart from fixing the pecuniary jurisdiction the same has barred the cognizance of the nature of the suits specified in the schedule as excepted from the jurisdiction of small causes court. section 9 provides for exclusive jurisdiction of the small causes court in respect of suits cognizable by it. article 4 of the schedule with which we are concerned is couched with negative language but if the same is dissected, deciphered and read along with section 8 it would only mean as follows:- a suit for the possession of immovable property or for the recovery of an interest in such property is not cognizable by a small causes court.- despite suchbar, what is cognizable by a small causes court is a suit for ejectment-a) where the property has been let under a lease or permitted to be occupied, by a written instrument or orally, andb) where the court of small causes would be competent to take cognizance of the suit for the rent of the property andc) where the only substantial issue for decision is as to whether the lease has been determined by efflux of time limited thereby or has been determined by a notice in accordance with law for the time being in force in respect of such lease or the permission to occupy has been withdrawn.10. the above would indicate with clarity that in so far as the provision in section 8, the legislature has specified the suits that is cognizable by a court of small causes and the pecuniary jurisdiction is also specified. section 9 provides for the exclusive jurisdiction of the courts of small causes so as to indicate that the suits cognizable by a small causes court shall not be tried by any other court having jurisdiction. however, while providing jurisdiction to the small causes court under section 8, the legislature has also excepted certain category of suits from the jurisdiction of a small causes court and the said category of suits which are excepted are specified in the schedule to the act which would indicate that all the suits which are enumerated at article 1 to 40 in the schedule are not cognizable by a court of small causes subject to permissibility carved out under such article. however in article 4 a particular category of suits have been carved and taken out from the exception, thus making it possible for the court of small causes to take cognizance of such suits alone which are carved out from the exception contemplated in article 4. it is this exception indicated in article 4 and the carved out category from the exception, which falls for our consideration. in so far as the position that even the said non-excepted suits which are permissible to be cognizable before a small causes court will have to be within the pecuniary jurisdiction of the small causes court as provided under section 8 of the act is well accepted and there is no confusion.11. in view of the permissibility of filing of a suit for ejectment subject to sub-articles (a) to (c), the question is as to whether the term ejectment is relatable only to a tenant as defined under the rent act in respect of a premises to which the rent act applies or would it also include a tenant/lessee or a permissive occupant either being in possession by written instrument or oral but would fall outside the applicability of the rent act and determination or efflux of time of such tenancy has taken place as provided under the provisions of the transfer of property act.12. it is in this context, a clear understanding of the meaning of the word 'possession' and 'ejectment' would have to be considered since it is contended that whenever a tenancy/lease is terminated under the provisions of the transfer of property act, the continuance of the erstwhile tenant/lessee after termination would be unlawful and cannot be considered to be a tenant. therefore in such circumstance, it is only a suit for possession which would lie and therefore a suit for possession being in the excepted category such a suit is not maintainable before the court of small causes.what does words 'possession' and 'ejectment' indicate:13. while appreciating this aspect of the matter, what is noticeable is that neither the word 'possession' nor the word 'ejectment' is defined under any of the statutes which are under consideration. it is in that context, the respective learned counsel have extensively referred to the external aids to construe the meaning of the said words and thereby to gather the intention of the legislature. but all the external aids more particularly order xx rule 12, article 67 of the limitation act and the provisions of the karnataka court fees and suits valuation act though use the word 'possession' and the kind of decrees that are permissible but no distinction as to whether the terms 'possession' and 'ejectment' would mean different or as to whether the same are interchangeable words as contended by sri g.s. visweswara, learned senior counsel is not clearly indicated. therefore, keeping in view the object of the act and the exceptions enumerated, as also the cognoscibility carved out would have to be borne in mind while assigning the appropriate meaning to the same. in this regard, the intention of the legislature in enacting the small causes courts would have to be borne in mind though we need not except the entire objects, what is noticeable is that the legislature though it fit to enact the act so as to divest certain category of suits from the purview of the civil courts in order to lessen the burden and provide jurisdiction to the small causes courts in respect of the such suits. while providing the jurisdiction to the small causes court, the suits which were not to be within its jurisdiction were excepted by listing out the same in the schedule. the excepted category would indicate that almost all suits relating to immovable property and certain other suits which call for a full dress trial have been excepted and in article 4 only suits for ejectment which do not admit of controversies and categorised in sub-article (a) to (c) to article 4 is permitted. however, the same could have been put in more plain and simple language but since that has been done, the intention of the legislature in keeping out a suit for possession or interest in such property but permitting a suit for ejectment under the categories stated in sub-article (a) to (c) would have to be understood.14. it is an accepted rule of construction that if a particular word is not defined under the statute and if different meanings are possible, the meaning used in common parlance and appropriate to the context would have to be adapted. therefore, in this context, if the word possession alone is considered, it could be used in several contexts for securing possession. not only in the case of securing possession from a tenant defined under the act or a non-statutory tenant who is continuing in possession despite efflux of time or termination of the tenancy, but can also be when a owner of a property has been divested of his possession in different ways i.e., either by trespass, holding hostile possession, adverse possession and the like and in such circumstances, the owner of the property loses actual possession of the property. yet in another circumstance, i.e., either when the property is let-out to a tenant as defined under the rent act and if such tenant continues to be in occupation after determination of the tenancy or in the case of the tenancy, lease, licence or permissive possession granted to a tenant the handing over of possession or creation of such tenancy or the likes is by lawful means at the inception and even though the erstwhile tenant remains to be in actual and physical possession, the possessory rights by way of ownership and constructive possession would continue to remain with the landlord and the fact that the person in physical possession becomes an unlawful occupant of the property after the efflux of time or the termination of the tenancy is only a legal fiction. therefore, even in such circumstance the only course to be adapted is to eject, evict or ease out such person from the property. hence the word 'ejectment' can be used even in such situation. in effect ejectment would mean getting back actual possession, after sending out the person who at that point of time has no right to continue in occupation of the property though at the inception, while he entered occupation, he had a right. this would only indicate that the word 'possession' includes all types of possession and therefore the said term is all encompassing and includes the word ejectment. hence, in our view, the word 'possession' is generic in nature and the word 'ejectment' is a specifies. they are however not interchangeable inasmuch as the word ejectment could be used only in respect of person whose initial entry was lawful and continues to be lawful or has become unlawful by legal fiction whereas the word possession could be used in respect of both who have entered lawfully or otherwise.regarding 'interest in the property':15. the second excepted category of suits in article 4 is for the recovery of an 'interest' in such property of which possession is sought. hence, it is necessary to understand what would constitute 'interest' in such property. in this regard, sri sampath anand shetty, learned counsel, vociferously contended that rent, damages, compensation and mesne profits cannot be construed as interest in property and even for recovery of damages and mesne profits along with possession suit was maintainable before small causes court. in this regard, the learned counsel placed reliance on the decisions of the learned single judge of this court and other high court in the case of muddanna shetty v. maire 1958 (36) mys. lj 836, state of madras v. chithuru ramanna air (38) 1941 madras 710, ram swarup v. hitmal : air1966mp186 , bhagat g.m.f.d.c. bhnyan v. gopi bhoi : air1966ori84 and sitaram v. petia air 1971 nagpur 37.16. in our view, none of the said decisions are of any assistance since the decisions of the other high courts are all matters where articles 7, 8 and 31 of schedule ii to provincial small causes court act which are not analogous to article 4 were under consideration.17. apart from the arguments, the learned counsel has submitted notes of arguments and the tenor appears as if the entire conspectus of the small causes court act is under consideration. the preliminary discussions to this order, the propositions raised and the circumstance under which this matter is referred would make it clear that our task is only to interpret article 4 and not all other rights arising under the small causes court act. the reference made to article 28 by other learned counsel is only as an aid to interpret article 4 and as such we do not deem it necessary to advert to the other contentions put forth and our consideration is limited only to possession ejectment and interest in such property regarding which ejectment is sought. even the decision of this court in the case of muddanna shetty is also in construing article 35(2) of that act and is under a totally different circumstance where the claim was against the tenant for unauthorised cutting of trees by wrongful act. in any event, we are unable to persuade ourselves to accept that view more particularly when another learned judge of this hon'ble court in a decision while considering articles 4 and 10 of the present act has held that interest accrued on a mortgage debt is an interest in the immovable property i.e., guruvaiah p.m. v. krishna venamma 1983 (1) klj 66 and in any event in the present circumstance we are concerned with regard to interest in such immovable property regarding which ejectment is also an issue. further the black's law dictionary would explain the phrase 'interest in the use and enjoyment of land' to include pleasure, comfort and advantage that a person may derive from the occupancy of land. the term includes not only the interests that a person may have for residential, agricultural, commercial, industrial and other purposes, but also interests in having the present use, value of the land unimpaired by changes in its physical condition.18. therefore, when enjoyment of the land and advantage that a person may derive is an 'interest' in the property, in our considered view, the rent, damages, mesne profits, compensation etc., in respect of such land which the owner is entitled to receive more particularly when such property is occupied by someone else has to be construed as is also 'interest' in the immovable property.consideration of arguments on different aspects:19. however, there was an argument which was placed before us that even assuming for a moment that the mesne profits and damages are held to be 'interest' in the property even then a person would be entitled to file a suit before the court of small causes since it is the plaintiff who determines what is the prayer to be sought before the court and if the suit is framed in such way and the relief sought is such that it would fall within the jurisdiction, such a suit would have to be entertained. in this regard, it was contended that if a plaintiff seeks only the relief of ejectment or ejectment with a prayer for rent within the pecuniary jurisdiction of the small causes court such a suit cannot be said to be not maintainable since according to sri p.d. surana, learned counsel, a plaintiff could still file a suit separately for damages and mesne profits before a civil court and the same would not be hit by order ii rule 2 cpc. though we do not intend to touch upon the question as to whether the subsequent suit before the civil court would be barred under order ii rule 2 cpc, but we would only examine whether the suit with prayer for revetment or for ejectment and rent or even including mesne profits would be maintainable before the small causes court.20. sriyuths nandagopal, b.m. arun, kumbar and jayaraj, learned counsel also supplemented the contention even by referring to section 41(2) of the karnataka court fees and suits valuation act. sri nandagopal, learned counsel particularly referred to order l of cpc to point out that the same does not exclude order xx rule 12 cpc from its application to small causes court and as such the decrees for possession and mesne profits can be granted by the small causes court. it is also his contention that in article 28 to the schedule of the small causes court, mesne profit is expressly excluded from the excepted category and as such the legislature did not have the intention to exclude mesne profits altogether.21. none of the aids referred for the purpose of construction are helpful in our view since what requires to be noticed is that at the first instance in respect of the relief in all matters including that of ejecting a statutory tenant it was maintainable before a civil court in view of the jurisdiction available under section 9 of the code of civil procedure. out of such suits, a category of them is carved out and given to the jurisdiction of small causes court by indicating the power of the small causes court to take cognizance and as such jurisdiction should depend on the same and not on such implications which are pointed out.22. with regard to the contention of sri surana, learned counsel, that jurisdiction would depend on the relief claimed in the suit, even though reliance is placed on the decisions of the hon'ble supreme court in the case of smt. bismillah v. janeshwar prasad and ors. 1990 (1) scc 207 and in the case of raizada topandas and anr. v. gorakhram gokalchand : [1964]3scr214 the same cannot be accepted since the said decisions are not applicable to the facts on hand. in the first of the cited cases, what was being considered was exclusion of jurisdiction of civil court and it is settled principle that exclusion of civil court's jurisdiction is not readily accepted. in the second of the cited cases, the tenant was before the civil court for injunction and what fell for consideration was section 28 of bombay rent act and since the dispute itself was whether he was tenant or licencee, the suit was held maintainable before the civil court. whereas in the instant case, we are concerned as to the jurisdiction of the small causes court based on the subject matter and in this regard pleading can only determine the relief and not the subject matter. in fact the decision of the hon'ble supreme court in the case of harshad chumanlal modi v. dlf universal limited : air2005sc4446 cited by ms. jayna kothari is more opposite since the apex court has held that jurisdiction over the subject matter of the suit is by reason of limitation by statute and the appearance and answer by the defendant would not decide jurisdiction.23. it is needless to mention that when an interpretation of the jurisdiction of a court is to be made, the interpretation should always lean in favour of avoiding multiplicity of proceedings. therefore, if this argument is accepted, the same would only lead to such consequences. that apart, there is one more reason for not accepting such an argument i.e., section 9 of the act also would have to be kept in view. if for a moment it is assumed that a suit only for ejectment and rent is permitted before a court, it would mean that the jurisdiction of the court of small causes in this regard is upheld. once that is done, the difficulty would arise in as much as under section 9 the exclusive jurisdiction of the court of small causes is contained, which indicates that a suit cognizable by a court of small causes shall not be tried by any other court having jurisdiction. this means if in one case, a suit for ejectment with rent is permitted before a small causes court and if in another case the landlord chooses to file a suit for ejectment and mesne profits or damages and if the valuation is within the pecuniary jurisdiction, the first part of the ejectment becomes exclusive jurisdiction of the small causes court and second part before civil court. therefore it would not be maintainable before a civil court for the first relief whereas the second part for mesne profits and damages would be maintainable before the civil court and as such, in our view, an interpretation of this nature would only lead to absurdity and the same requires to be avoided.24. the further contention of sri gs. visweswara, learned senior counsel with reference to the decision of the hon'ble supreme court in the case of budhumal v. mahabir prasad and ors. : air1988sc1772 and in the case of jagannath prasad v. district judge, allahabad : air1987all317 of allahabad high court, that the court would have jurisdiction at the first instance and it is for the small causes court to decide, does not appear to be of any assistance to decide the question involved. the said decision are rendered in the context of section 23 of the provincial small causes court act, which is parimateria with section 16 of the karnataka small causes court act. therefore, in a case, if the court has jurisdiction and in such suit if a question with regard to title arises, the small causes court would no doubt have jurisdiction to decide whether it requires to be referred to civil court or it can decide by itself but in the case on hand, the question is whether the court has jurisdiction and that can be ascertained only by understanding the real intent of article 4 to the schedule. while on this aspect, what is to be noticed is that since rent act, 1999 has not been made applicable to the premises enumerated in section 2(3) of the act, the premises having higher rent would in any case get ousted from the purview of the small causes court on the basis of the pecuniary jurisdiction contained in section 8 of the act and those premises to which the rent act applies would be before the small causes court. therefore, the only other category which requires their jurisdiction to be decided are persons who are occupying premises not covered under rent act and therefore takes them out of the purview of the rent act but are paying annual rent which is less than the maximum permissible valuation for pecuniary jurisdiction of the small causes court. therefore, the moot question is whether it should depend on relief framed with reference to pecuniary jurisdiction or the subject matter contemplated in article 4 to the schedule?25. one other contention which was forcefully advanced by ms. anuradha, the learned counsel is to the effect that, not only under article 4, but even otherwise a suit of a non-statutory tenant would not lie before a small causes court in view of article (10) and (14) to the schedule since according to her the tenancy under transfer of property act is a contract and ejecting a tenant is nothing but enforcement of right or specific performance of a contract. we are however not convinced to accept such a contention and further the hon'ble supreme court in the case of raptakos brett and co. limited v. ganesh property : air1998sc3085 referred by us in this judgment has also held that a suit to recover possession from a tenant at sufferance is not always one for enforcement of rights arising out of contract for tenancy.analysis regarding jurisdiction:26. having analysed the words 'possession' and 'interest' in property contained in article 4 to the schedule and having deduced that ejectment is a species of possession which was been included under the permissibility carved out from the exception and further having analysed the different contentions and having concluded that the same would not render any assistance in deciding the jurisdiction for the subject matter, the next endeavour would be to consider the category of ejectment suit which is permitted before the court of small causes. sri g.s. visweswara, learned senior counsel referred to the definition as contained in the wharton's law lexicon which would read as hereunder:ejectment, the 'mixed' action at common law to recover the possession of land (which is real), and damages and costs for the wrongful withholding of the land (which are personal).it is with reference to the same, the learned senior counsel sought to contend that an action for ejectment carved out form the excepted category would include not only possession but damages and costs for wrongful withholding of the property or premises.27. however, according to us, since the definition of ejectment is not provided in the act, the said definitions referred to cannot be applied in abstract but should be considered in the context the word is used by the legislature. in this regard what requires to be noticed is as to whether the word 'ejectment' used in article 4 of the schedule is used without any rider attached to it. a close perusal would indicate that even though the legislature has permitted suits for ejectment before a small causes court, the same has not been let loose like a unruly horse to run amuck but the same is controlled by the reins attached to it in sub-articles (a), (b) and (c). as such it is necessary to understand the limitations provided therein even while entertaining a suit for ejectment. a noticeable feature is that the legislature while permitting the suit for ejectment has circumscribed the same to lie before small causes court only when the property has been let under lease or permitted to be occupied, by a written instrument or oral and the court of small causes would be competent to take cognizance of a suit and decide the substantial issue as to whether lease has come to an end or terminated in accordance with law. by bearing this aspect in mind, the issue requires to be examined. while doing so, the discussions made in the earlier part of the judgment would indicate that in respect of a tenant defined under the rent act i.e., the tenant of a premises to which rent act would apply, would continue to be a tenant even after efflux of time or after determination of the period by notice or if the permission to occupy has been withdrawn and even during the period after such eventuality and until the ejectment or eviction is made such person would remain to be a tenant and the consideration payable for the occupation of the premises either during the subsistence of the lease or subsequent to determination or efflux would be rent and the same cannot be called in any other nomenclature and therefore the same would satisfy sub-article (b) and the only substantial question would be as contained in sub-article (c). as such in so far as such a tenant is concerned, it is needless to mention that small causes court would have the jurisdiction to pass an order of ejectment even though a suit for possession of immovable property or interest in such property is excepted.28. that leaves us with the question to decide as to whether a tenant who lawfully occupied the premises as contained in sub-article (a) in respect of a premises to which the rent act does not apply and whose lease, term of tenancy, licence or permissive possession which has been determined under the provisions of transfer of property act would also fall under this bracket. hence it is necessary to first understand the status of such a person once the period has come to an end by efflux of time, determined by notice or permission is withdrawn and the kind of consideration that the landlord would be entitled to from the point of such determination. in this regard in order to contend that the occupation of such a person after the said period is unlawful, sri shekar shetty, learned counsel has referred to the decision of the hon'ble supreme court in the case of m.c. chocklingam and ors. v. v. manickavasagam and ors. : [1974]2scr143 wherein the hon'ble supreme court has held that a non-statutory tenant would be in wrongful possession of the property. even though the said decision was with regard to he entitlement of the licencee to seek renewal of the licence to run a cinema house and in such circumstance, the hon'ble supreme court held that after the landlord has determined the lease, the licencee would not have the right to seek for grant of licence since his possession is wrongful, the said decision would render insight to the fact that such possession is not lawful as like that of a statutory tenant.29. however, sri p.d. surana, learned counsel in order to butress his contention that even though the possession of the premises by a lessee after efflux of time or termination may not be lawful possession, but in any event it is a juridical possession protected by law against wrongful dispossession since he is a former tenant, relied on decision of the hon'ble supreme court in the case of kewal chand mimani (d) by lrs v. s.k. sen and ors. : [2001]3scr1056 . learned counsel also placed reliance on the decision of the hon'ble supreme court in the case of ambalal sarabhai enterprises v. amrit lal and co. and anr. : air2001sc3580 to contend that the tenant under the rent act as well as the lessee whose lease has been determined stand almost on the same footing and therefore a distinction cannot be made for the purpose of jurisdiction.30. however what is noticed is that in the latter judgment the view of the hon'ble supreme court was under a totally different set of circumstances where a tenant protected under the rent act sought to challenge the amendment to withdraw certain protection which was available. while upholding such amendment the hon'ble supreme court had come to the conclusion that a tenant under the rent act has no vested right so as to challenge the amendment and it is not a circumstance where the hon'ble supreme court declared that a statutory and non-statutory tenant are one and the same in status. therefore the said decision is of no assistance to place the tenant under the rent act as well as the lessee whose lease has been determined on the same pedestal. further the contention of sri nandagopal, learned counsel by referring to section 116 of the evidence act and section 111(g) of the transfer of property act, to indicate estoppel against the tenant and the right of re-entry to the landlord under the circumstances would not in any way help in deciding jurisdiction. further the decision referred to in the case of r.v. bhupal prasad v. state of andhra pradesh : air1996sc140 is also to the effect that juridical possession would continue even after determination as held in the other decisions noted above and similar to the view in the case of kewal chand mimani and would not render assistance. in fact the hon'ble supreme court in the case of raptakos brett and co. limited v. ganesh property : air1998sc3085 has held that wrongful possession is not distinct from unlawful occupation and a erstwhile tenant continues in possession because he cannot be physically thrown out without due process of law and the status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession. the settled position of law as enunciated by the apex court including in the case relied on by the learned counsel would indicate that in the case of a non-statutory tenant whose tenancy has been determined continues to be in possession as erstwhile tenant and would not fall within the definition of tenant but would only be protected from unlawful eviction but his possession after determination would be wrongful possession without independent right to continue whereas a tenant under the rent act has a right to continue as protected under the act.31. thus the question is whether the lessee/tenant whose term of tenancy has been determined and who continues to be in possession of the premises even though not entitled to in law can be sought to be evicted by approaching small causes court keeping in view section 8, 9 and also article 4 of the act. in the case on hand, the tenant is occupying the premises which is not governed by the provisions of the rent act and is not 'tenant' as defined but is a person who was tenant/lessee at the time of inception of the tenancy and has become unlawful occupant on determination as efflux in view of the legal fiction. as already noticed sub-article (b) is an indication as to whether even in respect of such tenant the ejectment eviction suits could be filed before the small causes court. further as already noticed even though exception includes interest in the property such as rent, mesne profits, damages, compensation etc., sub-article (b) provides that a suit is maintainable if the small causes court has jurisdiction to entertain a suit for rent of the property. in this regard, section 2(12) of the code of civil procedure defines mesne profits. this indicates that the profits derived by the person in wrongful possession would have to pass on to the landlord and in the event, the landlord is unable to establish any higher profits than the quantum of amount which was being paid earlier as rent, in such circumstances, the same quantum would derive the nomenclature of mesne profits from the day his possession becomes wrongful. in this regard, the division bench decision of this court cited by sri shekar shetty, learned counsel in the case of b.s. giridhar v. p.v. shetty : ilr1984kar1115 and moca v. morzaria products (p) limited : ilr1991kar1492 has held that the tenants under the rent act would continue to be tenants and the latter judgment has further held that in respect of such person even after determination the amount payable would be rent and not mesne profits. this has been correctly reflected upon by the learned single judge in the situation in which it was before the learned single judge in the case of ramesh p. seth v. m.s. krishnamurthy : ilr2002kar565 by placing reliance on a division bench ruling in the case of b.s. giridhar cited supra. that being so, in our view, the converse is that in the case of an erstwhile tenant who is not a statutory tenant in view of the premises not being governed by the rent act, the consideration payable for such unlawful, wrongful and juridical possession as tenant at sufferance is mesne profits, damages or compensation and not rent.32. therefore if sub-article (b) is kept in view and if sub-article (c) is analysed, it would indicate that the point at which the landlord seeks ejectment of such person by filing a suit would be in a circumstance where the tenancy has come to an end by efflux of time or determined by notice or permission to occupy has been withdrawn which means at the point of filing the suit, this eventuality would have arisen and that would be the only substantial issue to be decided unless and otherwise any other defence is put forth by the erstwhile tenant. at this stage, we would do well to pause and notice all the decisions of the learned single judge on this subject in the case of baduvakunhibeary v. venkatesha shanbhogue 1972 (1) mlj 211, monappa mulya v. kusuma shetty 1971 (2) mlj 356, sheena bhandary v. thanuja bhandary 1970 mlj sn 310, hanumantha acharya v. madhavaprabhu 1988 (2) klj 362, laxminarayana rao v. janardha shettigara : air1994kant105 and b. krishnappa v. chandrika g. : ilr2006kar4704 were all rendered in a circumstance where only the substantial question as contemplated in sub-article (c) was involved in the facts of those cases but the effect of article 4 as a whole was not considered and as such the decisions cannot be considered as precedents to decide the proposition. but the most distinguishing feature between a tenant as defined and an erstwhile tenant is that on such day the consideration payable cannot be termed as 'rent' in respect of erstwhile tenant since the possession would have become wrongful possession. if this is kept in view, it would be clear that for a suit for ejectment to be maintainable as per article 4, before the small causes court, sub-article (a) prescribes the pre-requisite and sub-article (c) prescribes the scope of enquiry which indicates the summary nature and it is sub-article (b) which holds the key to deciding the jurisdiction when all the three are read conjunctively since the words 'would be competent to take cognizance of a suit for rent of the property' as contained in sub-article (b) would assume all importance, more particularly the words 'would be' which denotes that as on the date of presenting the suit to the small causes court, the court should be competent to take cognizance of a suit for rent. the term 'rent' can be used only in respect of a tenant and not otherwise. therefore on that particular day, the small causes court would not have jurisdiction to entertain the suit in view of sub-article (b), unless he is a tenant of a premises to which the rent act is applicable which continues his status as tenant. having said this, if section 43 of rent act is perused, it takes care of the requirement of sub-articles (a) and (c) and section 45 of act emphasises the right of the landlord to receive rent even at the stage of ejectment as envisaged under sub-article (c) to article 4 of the schedule. the reliance placed by sri surana, learned counsel to the decision of a learned single judge in the case of motwane private limited v. mohd. asif (d) by lrs. 2006 (1) air karn 61 cannot be of any assistance since it has proceeded only on the basis that there was no prayer for rent and in any event in view of our analysis of this aspect, we are not persuaded by the same. in the words of scrutton, l.j. 'you do sometimes read 'or' as 'and' in a statute. but you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. in the cited decision, there is no such obligation explained and therefore, we would have to read it as it exists.conclusion regarding jurisdiction33. hence, the resultant effect is that the legislature while excepting a suit for possession has carved out ejectment and qualified the same by carving out rent from the excepted category of interest in the property and combining it with element and then making it possible for the small causes court only to eject the tenant who continues to pay (the consideration of rent) and sub-article (a) and (c) ensure the summary nature of the proceedings which is further complimented by sections 43 and 45 of rent act. therefore the irresistible conclusion can only be that in respect of a tenant/lessee who is not protected under the rent act ejectment suit would not be maintainable before the court of small causes since the court would not have the jurisdiction to take cognizance of such a suit and could be instituted only before the civil court even if bare ejectment is sought.34. on considering all the propositions put up before us and on analysis and interruption, our conclusion to the three questions raised are as follows:proposition no. 1:- can small causes court take cognizance of only such suits which are filed seeking ejectment of tenants of the premises to which the karnataka rent act applies and not in respect of tenants who occupy the premises and whose tenancy has been determined or come to end since in such case the remedy is only before the civil court?answer- affirmativethe small causes court can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which karnataka rent act applies and not in respect of the tenants/persons who occupy other premises to which the act does not apply and whose tenancy has been determined or has come to an end either by efflux of time or by withdrawal of the same.proposition no. 2:- can small causes court take cognisance of suits filed seeking ejectment and rent even in respect of the premises to which karnataka rent act is not applicable, subject to there being no prayer for mesne profits, damages and/or compensation, provided the valuation of the same being within the pecuniary jurisdiction?proposition no. 3:- can small causes court take cognisance of suits filed seeking ejectment, rent, damages mesne profits etc., even in respect of the premises to which karnataka rent act is not applicable, provided the valuation of the same being within the pecuniary jurisdiction?answer - negativein respect of the ejectment of the tenants in respect of the premises to which the karnataka rent act does not apply, relief would have to be sought for by filing an appropriate suit before the city civil judge court which alone can entertain such suits even if bare ejectment or revetment and arrears of rent is sought.regarding the confusion on three judgments of this court:1. ramesh p. seth v. m.s. krishnamurthy and anr. (supra)2. bangalore printing and publishing co. limited v. soukar t. premnath : ilr2004kar98 3. khandelwal brothers co. limited v. g.s. nisar ahmed : ilr2004kar2864 .35. from the arguments addressed before us, there appears to be some confusion in respect of these three judgments rendered by the respective hon'ble single judge of this court and hence, we think it fit to clarify the position.36. the decision in the case of ramesh p. seth (supra) referred to supra is with regard to a tenant defined under section 3(r) of karnataka rent control act. in such cases no court would have jurisdiction to grant prayer for damages or mesne profits and such a prayer would be redundant and the court would proceed only for ejectment and rent. as such the learned single judge keeping in view the provisions of the k.r.c. act has rightly held that the question of damages does not arise and has held that the suit for ejectment and rent is maintainable before small causes court. in the case of bangalore printing and publishing co. limited v. soukart. premnath (supra), it is under the provisions of karnataka rent act, 1999. though the reasoning adapted is not similar to our reasoning, the conclusion arrived at by the learned single judge is that in respect of a premises which is not governed by rent act, the jurisdiction to file suit is before the civil court which is similar to our view and as such the said decision is the correct view as to its conclusion in so far as deciding jurisdiction is concerned. with regard to the decision in the case of khandelwal brothers co. limited v. g.s. nisar ahmed (supra) which is also under rent act, 1999, the learned single judge insofar as mesne profits and damages has held that suit would not be maintainable before small causes court but a suit for ejectment only would be maintainable and written statement would decide jurisdiction. this view is taken by referring only to sub-article (c) of article 4, whereas in our order we have examined the conjoint scope of (a) (b) and (c) and have held that a suit even for ejectment in respect of an erstwhile tenant of a premises not governed under the rent act also is not cognizable by the small causes court and as such we cannot uphold the view taken by the learned single judge to that extent.37. though large number of revision petitions are referred to the division bench, as already noted without considering the facts, pleadings and evidence and more importantly points for reference, we deem it proper to refer all cases back to the learned single judge, to decide the cases in accordance with law and in the light of the proposition decided in the lead case c.r.p. 101/2004.on the facts of this revision petition:38. having decided the question of law with regard to jurisdiction, it is time now to advert to the facts involved in this case. the undisputed fact is that the premises in question bearing no. 675/b, kodigehalli, yelahanka hobli, bangalore north taluk measures more than 14 sq meters and the monthly rent is rs. 1,600/-. the learned counsel for respondent sought to contend that since the annual rent of the premises comes to rs. 19,200/- and the valuation as per section 41(2) of the karnataka court fees and suits valuation act being within the pecuniary jurisdiction and further since the small causes court has not granted damages the order dated 30.10.2003 is sustainable. but in view of our decision on this contention and since in the present case the premises measures more than 14 sq meters and being outside the purview of the rent act, the small causes court could not have taken cognizance and as such the judgment dated 30.10.2003 is not sustainable and the same is accordingly set aside. the matter is remitted to the small causes court to return the plaint to the plaintiff to present it before the appropriate forum.39. but before we part, we cannot ignore the plight of the respondent herein who in fact had chosen the appropriate forum and filed the suit in o.s. no. 9263/1999 before the city civil court in 1999 since the lease expired on 10.4.1999, but the civil court had returned the plaint by applying the decision in the case of ramesh p seth v. krishnamurthy (supra) and as such the respondent filed it before the small causes court in sc no. 161/2003 and the same was decreed. but in view of our decision, the respondent would have to re-approach the civil court. in our view, at the first instance itself the civil court had wrongly applied the decision in ramesh p. sethi's case to the facts in this cases. the maxim 'actus curiae neminem gravabit' i.e., the act of court should prejudice no man would apply and the person would have to be put back to the earlier position as held by the hon'ble supreme court in the case of jang singh v. brij lal : [1964]2scr145 . in the facts of this case, the respondent no doubt cannot be given the benefit of a decree passed without jurisdiction. but the court cannot shirk its responsibility of providing legal solace atleast to the extent possible. as such on refiling of the plaint before the civil court, the same would have to be taken on its original number in o.s. no. 9263/1999 by restoring the same and the first date shall be given as 10.8.2007 on which day the petitioner herein also shall appear without expecting fresh notice and thereafter the case shall be taken up from the stage at which it rested when the plaint was returned and dispose of as expeditiously as possible but not later than six months from 10.8.2007. that apart if the respondent makes out a case for decree, the time lapse from 1999 shall also be kept in view while granting time to vacate.40. in the result the revision petition is allowed and order dated 30.10.2003 is set aside subject to the above observations.

Judgment:
ORDER

S.R. Bannurmath, J.

1. At the request of the learned Single Judge, large number of Civil Revision Petition have been referred to this Bench by the directions of the Hon'ble Chief Justice.

2. Though the referral request of the learned Single Judge does not indicate as to what is the order of reference or what question of law is required to be decided by a Division Bench, since after hearing the learned Counsel appearing in these cases, it appears to us general principles in so far as jurisdiction of the Small Causes Courts entertaining a suit for ejectment, as laid down in few of the decision referred in this order, requires consideration.

3. As no specific referral order and question for decision is formulated by the learned Single Judge, we have taken his case as a lead case and discussed the scope, jurisdiction and enquiry of Small Causes Courts in entertaining a suit for ejectment, carved out of the exception to the schedule under Small Causes Courts Act. The sequence leading to the same are that the respondent/landlord in this case was initially before the City Civil Court seeking for a decree of ejectment, arrears of rent and damages at the rate of Rs. 4,000/- per month against the petitioner/tenant. While the matter was pending in O.S. No. 9623/1999, the Civil Court by its order dated 9-1-2003, taking note of a decision rendered by a Learned Single Judge of this Court in the case of Ramesh P. Seth v. Krishnamurthy : ILR2002KAR565 ordered return of the plaint for presentation to the Court of Small Causes, Bangalore. Subsequently the Court of Small Causes registered the said suit in O.S. No. 161/2003 and by its judgment and decree dated 30.10.2003 directed the petitioner/tenant herein to vacate and deliver vacant possession of the suit premises to the respondent/landlord within three months. The petitioner/tenant was therefore before this Court in this revision petition which was at the first instance heard and disposed of by order dated 16-9-2004 reported in : ILR2004KAR4931 , wherein this Court dismissed the revision petition and affirmed the judgment and decree of the Small Causes Courts. One of the issues before the learned Single Judge was with regard to the jurisdiction of the Small Causes Court to entertain the said suit. In this regard, the learned Single Judge referred to the earlier decisions of this Court wherein a different view had been expressed but proceeded further to take another view. The order passed in this petition on 16-9-2004 was assailed by the petitioner/tenant before the Hon'ble Supreme Court in Civil Appeal No. 3376/2006 (arising out of SLP (C)No. 1637/2005). The Hon'ble Supreme Court however without adverting to the merits of the case, only on propriety, set aside the order dated 16-9-2004 and remitted the case back to the High Court for fresh decision in accordance with law. While doing so, the Hon'ble Supreme Court had indicated that it was open for the learned Single Judge to refer the matter to a Division Bench. On such remand, this revision petition was once against listed before the learned Single Judge and the Learned Single Judge in view of the order passed by the Hon'ble Supreme Court has thought it fit to refer the matter to the Division Bench. Accordingly the matter having been placed before Hon'ble the Chief Justice, who in turn has referred and directed the case to be placed before us.

4. The narration of the above facts would indicate that no specific question of law has been referred. Further, the contrary view taken by the learned Single Judge in this petition is also not in existence in view of the Hon'ble Supreme Court setting aside that order. However after this revision petition was referred to this Bench, several other revision petitions wherein the question of jurisdiction of Small Causes Court had been raised, all have been referred to this Bench at the request of the learned Single Judge.

5. Therefore the issue which essentially requires to be decided by us is as to the jurisdiction of the Small Causes Court to entertain a suit for ejectment of a tenant in a premises to which the Karnataka Rent Act, 1999 ('the Rent Act' for short) is not applicable and the tenancy is determined or has come to an end by efflux of time.

6 This being the question of law to be decided, we have at the outset thought it fit to consider the same without adverting to the individual factual matrix involved in each of the cases referred but to take this case as a last case and consider the legal position so that it would apply to the facts involved in each case including the facts in this case. It is in this context, that we have heard all the learned Counsel who represent the parties in the different revision petitions which have been referred to this Bench including the learned Counsel appearing for the parties in this petition.

7. On hearing the learned Counsel and keeping in view Sections 8, 9 and Article 4(a) to (c) to the Schedule of Karnataka Small Causes Courts Act ('the Small Causes Act' for short) the following three propositions arise for consideration viz.,

Propositions For Consideration:

Proposition No. 1:- Can Small Causes Court take cognizance of only such suits which are filed seeking ejectment of tenants of the premises to which the Karnataka Rent Act applies and not in respect of tenants who occupy the premises and whose tenancy has been determined or come to an end since in such case the remedy is only before the Civil Court?

Proposition No. 2:- Can Small Causes Court take cognisance of suits filed seeking ejectment and rent even in respect of the premises to which Karnataka Rent Act is not applicable, subject to there being no prayer for mesne profits, damages and/or compensation, provided the valuation of the same being within the pecuniary jurisdiction?

Proposition No. 3:- Can Small Causes Court take cognisance of suits filed seeking ejectment, rent, damages mesne profits etc., even in respect of the premises to which Karnataka Rent Act is not applicable, provided the valuation of the same being within the pecuniary jurisdiction?

8. In this backdrop, we have heard Sri G.S. Visweswara, Sri H.L. Tiku and Sri S.R Shankar, learned senior counsel, Sri Shekar Shetty, Sri LaxminarayanaRao, Sri K. Suryanarayana Sampath Anand Shetty, Sri Ravindranath Kamath, Sri Jayaraj, M/s Anuradha, Sri B.M. Arun, Sri Abhinav and Ms. Jayna Kothari, learned Counsel on the above noted propositions. The respective arguments advanced are noticed at the appropriate stage.

Relevant Provision Under Consideration

9. In respect of all the propositions Section 8 and 9 as also the Article 4 to schedule of the Karnataka Small Causes Courts Act has been extensively referred by all the learned Counsel and as such it is necessary to notice the said provisions which read as hereunder:

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 (twenty-five thousand) 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 (three thousand) rupees shall be cognizable by a Court of Small Causes mentioned in the notification.

9. Exclusive jurisdiction of Courts of Small Causes.- Save as expressly provided by this Act or by any other law for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction, within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable.

SCHEDULE

Suits Excepted from the cognizance of Court of Small Causes (see Section 8

(4) A suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit for ejectment where-

a) the property has been let under a lease or permitted to be occupied, by a written instrument or orally, and

b) the Court of Small Causes would be competent to take cognizance of a suit for the rent of the property, and

c) the only substantial issue arising for the decision is as to whether the lease has been determined by efflux of the time limited thereby or has been determined by a notice in accordance with the law for the time being in force in respect of such lease, or the permission to occupy has been withdrawn.

A perusal of the above provisions would indicate that vide Section 8, apart from fixing the pecuniary jurisdiction the same has barred the cognizance of the nature of the suits specified in the schedule as excepted from the jurisdiction of Small Causes Court. Section 9 provides for exclusive jurisdiction of the Small Causes Court in respect of suits cognizable by it. Article 4 of the Schedule with which we are concerned is couched with negative language but if the same is dissected, deciphered and read along with Section 8 it would only mean as follows:

- A suit for the possession of immovable property or for the recovery of an interest in such property is not cognizable by a Small Causes Court.

- Despite suchbar, what is cognizable by a Small Causes Court is a suit for ejectment-

a) Where the property has been let under a lease or permitted to be occupied, by a written instrument or orally, and

b) Where the Court of Small Causes would be competent to take cognizance of the suit for the rent of the property and

c) Where the only substantial issue for decision is as to whether the lease has been determined by efflux of time limited thereby or has been determined by a notice in accordance with law for the time being in force in respect of such lease or the permission to occupy has been withdrawn.

10. The above would indicate with clarity that in so far as the provision in Section 8, the legislature has specified the suits that is cognizable by a Court of Small Causes and the pecuniary jurisdiction is also specified. Section 9 provides for the exclusive jurisdiction of the Courts of Small Causes so as to indicate that the suits cognizable by a Small Causes Court shall not be tried by any other Court having jurisdiction. However, while providing jurisdiction to the Small Causes Court under Section 8, the legislature has also excepted certain category of suits from the jurisdiction of a Small Causes Court and the said category of suits which are excepted are specified in the schedule to the Act which would indicate that all the suits which are enumerated at Article 1 to 40 in the schedule are not cognizable by a Court of Small Causes subject to permissibility carved out under such article. However in Article 4 a particular category of suits have been carved and taken out from the exception, thus making it possible for the Court of Small Causes to take cognizance of such suits alone which are carved out from the exception contemplated in Article 4. It is this exception indicated in Article 4 and the carved out category from the exception, which falls for our consideration. In so far as the position that even the said non-excepted suits which are permissible to be cognizable before a Small Causes Court will have to be within the pecuniary jurisdiction of the Small Causes Court as provided under Section 8 of the Act is well accepted and there is no confusion.

11. In view of the permissibility of filing of a suit for ejectment subject to Sub-articles (a) to (c), the question is as to whether the term ejectment is relatable only to a tenant as defined under the Rent Act in respect of a premises to which the Rent Act applies or would it also include a tenant/lessee or a permissive occupant either being in possession by written instrument or oral but would fall outside the applicability of the Rent Act and determination or efflux of time of such tenancy has taken place as provided under the provisions of the Transfer of Property Act.

12. It is in this context, a clear understanding of the meaning of the word 'possession' and 'ejectment' would have to be considered since it is contended that whenever a tenancy/lease is terminated under the provisions of the Transfer of Property Act, the continuance of the erstwhile tenant/lessee after termination would be unlawful and cannot be considered to be a tenant. Therefore in such circumstance, it is only a suit for possession which would lie and therefore a suit for possession being in the excepted category such a suit is not maintainable before the Court of Small Causes.

What Does Words 'Possession' And 'Ejectment' Indicate:

13. While appreciating this aspect of the matter, what is noticeable is that neither the word 'possession' nor the word 'ejectment' is defined under any of the Statutes which are under consideration. It is in that context, the respective learned Counsel have extensively referred to the external aids to construe the meaning of the said words and thereby to gather the intention of the legislature. But all the external aids more particularly Order XX Rule 12, Article 67 of the Limitation Act and the provisions of the Karnataka Court Fees and Suits Valuation Act though use the word 'possession' and the kind of decrees that are permissible but no distinction as to whether the terms 'possession' and 'ejectment' would mean different or as to whether the same are interchangeable words as contended by Sri G.S. Visweswara, learned Senior Counsel is not clearly indicated. Therefore, keeping in view the object of the Act and the exceptions enumerated, as also the cognoscibility carved out would have to be borne in mind while assigning the appropriate meaning to the same. In this regard, the intention of the legislature in enacting the Small Causes Courts would have to be borne in mind though we need not except the entire objects, what is noticeable is that the legislature though it fit to enact the Act so as to divest certain category of suits from the purview of the Civil Courts in order to lessen the burden and provide jurisdiction to the Small Causes Courts in respect of the such suits. While providing the jurisdiction to the Small Causes Court, the suits which were not to be within its jurisdiction were excepted by listing out the same in the schedule. The excepted category would indicate that almost all suits relating to immovable property and certain other suits which call for a full dress trial have been excepted and in Article 4 only suits for ejectment which do not admit of controversies and categorised in Sub-article (a) to (c) to Article 4 is permitted. However, the same could have been put in more plain and simple language but since that has been done, the intention of the legislature in keeping out a suit for possession or interest in such property but permitting a suit for ejectment under the categories stated in Sub-article (a) to (c) would have to be understood.

14. It is an accepted rule of construction that if a particular word is not defined under the statute and if different meanings are possible, the meaning used in common parlance and appropriate to the context would have to be adapted. Therefore, in this context, if the word possession alone is considered, it could be used in several contexts for securing possession. Not only in the case of securing possession from a tenant defined under the Act or a non-statutory tenant who is continuing in possession despite efflux of time or termination of the tenancy, but can also be when a owner of a property has been divested of his possession in different ways i.e., either by trespass, holding hostile possession, adverse possession and the like and in such circumstances, the owner of the property loses actual possession of the property. Yet in another circumstance, i.e., either when the property is let-out to a tenant as defined under the Rent Act and if such tenant continues to be in occupation after determination of the tenancy or in the case of the tenancy, lease, licence or permissive possession granted to a tenant the handing over of possession or creation of such tenancy or the likes is by lawful means at the inception and even though the erstwhile tenant remains to be in actual and physical possession, the possessory rights by way of ownership and constructive possession would continue to remain with the landlord and the fact that the person in physical possession becomes an unlawful occupant of the property after the efflux of time or the termination of the tenancy is only a legal fiction. Therefore, even in such circumstance the only course to be adapted is to eject, evict or ease out such person from the property. Hence the word 'ejectment' can be used even in such situation. In effect ejectment would mean getting back actual possession, after sending out the person who at that point of time has no right to continue in occupation of the property though at the inception, while he entered occupation, he had a right. This would only indicate that the word 'possession' includes all types of possession and therefore the said term is all encompassing and includes the word ejectment. Hence, in our view, the word 'possession' is generic in nature and the word 'ejectment' is a specifies. They are however not interchangeable inasmuch as the word ejectment could be used only in respect of person whose initial entry was lawful and continues to be lawful or has become unlawful by legal fiction whereas the word possession could be used in respect of both who have entered lawfully or otherwise.

Regarding 'Interest In The Property':

15. The second excepted category of suits in Article 4 is for the recovery of an 'interest' in such property of which possession is sought. Hence, it is necessary to understand what would constitute 'interest' in such property. In this regard, Sri Sampath Anand Shetty, learned Counsel, vociferously contended that rent, damages, compensation and mesne profits cannot be construed as interest in property and even for recovery of damages and mesne profits along with possession suit was maintainable before Small Causes Court. In this regard, the learned Counsel placed reliance on the decisions of the learned Single Judge of this Court and other High Court in the case of Muddanna Shetty v. Maire 1958 (36) Mys. LJ 836, State of Madras v. Chithuru Ramanna AIR (38) 1941 Madras 710, Ram Swarup v. Hitmal : AIR1966MP186 , Bhagat G.M.F.D.C. Bhnyan v. Gopi Bhoi : AIR1966Ori84 and Sitaram v. Petia AIR 1971 Nagpur 37.

16. In our view, none of the said decisions are of any assistance since the decisions of the other High Courts are all matters where Articles 7, 8 and 31 of Schedule II to Provincial Small Causes Court Act which are not analogous to Article 4 were under consideration.

17. Apart from the arguments, the learned Counsel has submitted notes of arguments and the tenor appears as if the entire conspectus of the Small Causes Court Act is under consideration. The preliminary discussions to this order, the propositions raised and the circumstance under which this matter is referred would make it clear that our task is only to interpret Article 4 and not all other rights arising under the Small Causes Court Act. The reference made to Article 28 by other learned Counsel is only as an aid to interpret Article 4 and as such we do not deem it necessary to advert to the other contentions put forth and our consideration is limited only to possession ejectment and interest in such property regarding which ejectment is sought. Even the decision of this Court in the case of Muddanna Shetty is also in construing Article 35(2) of that Act and is under a totally different circumstance where the claim was against the tenant for unauthorised cutting of trees by wrongful act. In any event, we are unable to persuade ourselves to accept that view more particularly when another learned Judge of this Hon'ble Court in a decision while considering Articles 4 and 10 of the present Act has held that interest accrued on a mortgage debt is an interest in the immovable property i.e., Guruvaiah P.M. v. Krishna Venamma 1983 (1) KLJ 66 and in any event in the present circumstance we are concerned with regard to interest in such immovable property regarding which ejectment is also an issue. Further the Black's Law Dictionary would explain the phrase 'interest in the use and enjoyment of land' to include pleasure, comfort and advantage that a person may derive from the occupancy of land. The term includes not only the interests that a person may have for residential, agricultural, commercial, industrial and other purposes, but also interests in having the present use, value of the land unimpaired by changes in its physical condition.

18. Therefore, when enjoyment of the land and advantage that a person may derive is an 'interest' in the property, in our considered view, the rent, damages, mesne profits, compensation etc., in respect of such land which the owner is entitled to receive more particularly when such property is occupied by someone else has to be construed as is also 'interest' in the immovable property.

Consideration of Arguments On Different Aspects:

19. However, there was an argument which was placed before us that even assuming for a moment that the mesne profits and damages are held to be 'interest' in the property even then a person would be entitled to file a suit before the Court of Small Causes since it is the plaintiff who determines what is the prayer to be sought before the Court and if the suit is framed in such way and the relief sought is such that it would fall within the jurisdiction, such a suit would have to be entertained. In this regard, it was contended that if a plaintiff seeks only the relief of ejectment or ejectment with a prayer for rent within the pecuniary jurisdiction of the Small Causes Court such a suit cannot be said to be not maintainable since according to Sri P.D. Surana, learned Counsel, a plaintiff could still file a suit separately for damages and mesne profits before a Civil Court and the same would not be hit by Order II Rule 2 CPC. Though we do not intend to touch upon the question as to whether the subsequent suit before the Civil Court would be barred under Order II Rule 2 CPC, but we would only examine whether the suit with prayer for revetment or for ejectment and rent or even including mesne profits would be maintainable before the Small Causes Court.

20. Sriyuths Nandagopal, B.M. Arun, Kumbar and Jayaraj, learned Counsel also supplemented the contention even by referring to Section 41(2) of the Karnataka Court Fees and Suits Valuation Act. Sri Nandagopal, learned Counsel particularly referred to Order L of CPC to point out that the same does not exclude Order XX Rule 12 CPC from its application to Small Causes Court and as such the decrees for possession and mesne profits can be granted by the Small Causes Court. It is also his contention that in Article 28 to the schedule of the Small Causes Court, mesne profit is expressly excluded from the excepted category and as such the legislature did not have the intention to exclude mesne profits altogether.

21. None of the aids referred for the purpose of construction are helpful in our view since what requires to be noticed is that at the first instance in respect of the relief in all matters including that of ejecting a statutory tenant it was maintainable before a Civil Court in view of the jurisdiction available under Section 9 of the Code of Civil Procedure. Out of such suits, a category of them is carved out and given to the jurisdiction of Small Causes Court by indicating the power of the Small Causes Court to take cognizance and as such jurisdiction should depend on the same and not on such implications which are pointed out.

22. With regard to the contention of Sri Surana, learned Counsel, that jurisdiction would depend on the relief claimed in the suit, even though reliance is placed on the decisions of the Hon'ble Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad and Ors. 1990 (1) SCC 207 and in the case of Raizada Topandas and Anr. v. Gorakhram Gokalchand : [1964]3SCR214 the same cannot be accepted since the said decisions are not applicable to the facts on hand. In the first of the cited cases, what was being considered was exclusion of jurisdiction of Civil Court and it is settled principle that exclusion of Civil Court's jurisdiction is not readily accepted. In the second of the cited cases, the tenant was before the Civil Court for injunction and what fell for consideration was Section 28 of Bombay Rent Act and since the dispute itself was whether he was tenant or licencee, the suit was held maintainable before the Civil Court. Whereas in the instant case, we are concerned as to the jurisdiction of the Small Causes Court based on the subject matter and in this regard pleading can only determine the relief and not the subject matter. In fact the decision of the Hon'ble Supreme Court in the case of Harshad Chumanlal Modi v. DLF Universal Limited : AIR2005SC4446 cited by Ms. Jayna Kothari is more opposite since the Apex Court has held that jurisdiction over the subject matter of the suit is by reason of limitation by statute and the appearance and answer by the defendant would not decide jurisdiction.

23. It is needless to mention that when an interpretation of the jurisdiction of a Court is to be made, the interpretation should always lean in favour of avoiding multiplicity of proceedings. Therefore, if this argument is accepted, the same would only lead to such consequences. That apart, there is one more reason for not accepting such an argument i.e., Section 9 of the Act also would have to be kept in view. If for a moment it is assumed that a suit only for ejectment and rent is permitted before a Court, it would mean that the jurisdiction of the Court of Small Causes in this regard is upheld. Once that is done, the difficulty would arise in as much as under Section 9 the exclusive jurisdiction of the Court of Small Causes is contained, which indicates that a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction. This means if in one case, a suit for ejectment with rent is permitted before a Small Causes Court and if in another case the landlord chooses to file a suit for ejectment and mesne profits or damages and if the valuation is within the pecuniary jurisdiction, the first part of the ejectment becomes exclusive jurisdiction of the Small Causes Court and second part before Civil Court. Therefore it would not be maintainable before a Civil Court for the first relief whereas the second part for mesne profits and damages would be maintainable before the Civil Court and as such, in our view, an interpretation of this nature would only lead to absurdity and the same requires to be avoided.

24. The further contention of Sri GS. Visweswara, learned senior counsel with reference to the decision of the Hon'ble Supreme Court in the case of Budhumal v. Mahabir Prasad and Ors. : AIR1988SC1772 and in the case of Jagannath Prasad v. District Judge, Allahabad : AIR1987All317 of Allahabad High Court, that the Court would have jurisdiction at the first instance and it is for the Small Causes Court to decide, does not appear to be of any assistance to decide the question involved. The said decision are rendered in the context of Section 23 of the Provincial Small Causes Court Act, which is parimateria with Section 16 of the Karnataka Small Causes Court Act. Therefore, in a case, if the Court has jurisdiction and in such suit if a question with regard to title arises, the Small Causes Court would no doubt have jurisdiction to decide whether it requires to be referred to Civil Court or it can decide by itself but in the case on hand, the question is whether the Court has jurisdiction and that can be ascertained only by understanding the real intent of Article 4 to the Schedule. While on this aspect, what is to be noticed is that since Rent Act, 1999 has not been made applicable to the premises enumerated in Section 2(3) of the Act, the premises having higher rent would in any case get ousted from the purview of the Small Causes Court on the basis of the pecuniary jurisdiction contained in Section 8 of the Act and those premises to which the Rent Act applies would be before the Small Causes Court. Therefore, the only other category which requires their jurisdiction to be decided are persons who are occupying premises not covered under Rent Act and therefore takes them out of the purview of the Rent Act but are paying annual rent which is less than the maximum permissible valuation for pecuniary jurisdiction of the Small Causes Court. Therefore, the moot question is whether it should depend on relief framed with reference to pecuniary jurisdiction or the subject matter contemplated in Article 4 to the schedule?

25. One other contention which was forcefully advanced by Ms. Anuradha, the learned Counsel is to the effect that, not only under Article 4, but even otherwise a suit of a non-statutory tenant would not lie before a Small Causes Court in view of Article (10) and (14) to the Schedule since according to her the tenancy under Transfer of Property Act is a contract and ejecting a tenant is nothing but enforcement of right or specific performance of a contract. We are however not convinced to accept such a contention and further the Hon'ble Supreme Court in the case of Raptakos Brett and Co. Limited v. Ganesh Property : AIR1998SC3085 referred by us in this judgment has also held that a suit to recover possession from a tenant at sufferance is not always one for enforcement of rights arising out of contract for tenancy.

Analysis Regarding Jurisdiction:

26. Having analysed the words 'possession' and 'interest' in property contained in Article 4 to the schedule and having deduced that ejectment is a species of possession which was been included under the permissibility carved out from the exception and further having analysed the different contentions and having concluded that the same would not render any assistance in deciding the jurisdiction for the subject matter, the next endeavour would be to consider the category of ejectment suit which is permitted before the Court of Small Causes. Sri G.S. Visweswara, learned senior counsel referred to the definition as contained in the Wharton's law lexicon which would read as hereunder:

Ejectment, the 'mixed' action at Common Law to recover the possession of land (which is real), and damages and costs for the wrongful withholding of the land (which are personal).

It is with reference to the same, the learned senior counsel sought to contend that an action for ejectment carved out form the excepted category would include not only possession but damages and costs for wrongful withholding of the property or premises.

27. However, according to us, since the definition of ejectment is not provided in the Act, the said definitions referred to cannot be applied in abstract but should be considered in the context the word is used by the legislature. In this regard what requires to be noticed is as to whether the word 'ejectment' used in Article 4 of the schedule is used without any rider attached to it. A close perusal would indicate that even though the legislature has permitted suits for ejectment before a Small Causes Court, the same has not been let loose like a unruly horse to run amuck but the same is controlled by the reins attached to it in Sub-articles (a), (b) and (c). As such it is necessary to understand the limitations provided therein even while entertaining a suit for ejectment. A noticeable feature is that the legislature while permitting the suit for ejectment has circumscribed the same to lie before Small Causes Court only when the property has been let under lease or permitted to be occupied, by a written instrument or oral and the Court of Small Causes would be competent to take cognizance of a suit and decide the substantial issue as to whether lease has come to an end or terminated in accordance with law. By bearing this aspect in mind, the issue requires to be examined. While doing so, the discussions made in the earlier part of the judgment would indicate that in respect of a tenant defined under the Rent Act i.e., the tenant of a premises to which Rent Act would apply, would continue to be a tenant even after efflux of time or after determination of the period by notice or if the permission to occupy has been withdrawn and even during the period after such eventuality and until the ejectment or eviction is made such person would remain to be a tenant and the consideration payable for the occupation of the premises either during the subsistence of the lease or subsequent to determination or efflux would be rent and the same cannot be called in any other nomenclature and therefore the same would satisfy Sub-article (b) and the only substantial question would be as contained in Sub-article (c). As such in so far as such a tenant is concerned, it is needless to mention that Small Causes Court would have the jurisdiction to pass an order of ejectment even though a suit for possession of immovable property or interest in such property is excepted.

28. That leaves us with the question to decide as to whether a tenant who lawfully occupied the premises as contained in Sub-article (a) in respect of a premises to which the Rent Act does not apply and whose lease, term of tenancy, licence or permissive possession which has been determined under the provisions of Transfer of Property Act would also fall under this bracket. Hence it is necessary to first understand the status of such a person once the period has come to an end by efflux of time, determined by notice or permission is withdrawn and the kind of consideration that the landlord would be entitled to from the point of such determination. In this regard in order to contend that the occupation of such a person after the said period is unlawful, Sri Shekar shetty, learned Counsel has referred to the decision of the Hon'ble Supreme Court in the case of M.C. Chocklingam and Ors. v. V. Manickavasagam and Ors. : [1974]2SCR143 wherein the Hon'ble Supreme Court has held that a non-statutory tenant would be in wrongful possession of the property. Even though the said decision was with regard to he entitlement of the licencee to seek renewal of the licence to run a Cinema house and in such circumstance, the Hon'ble Supreme Court held that after the landlord has determined the lease, the licencee would not have the right to seek for grant of licence since his possession is wrongful, the said decision would render insight to the fact that such possession is not lawful as like that of a statutory tenant.

29. However, Sri P.D. Surana, learned Counsel in order to butress his contention that even though the possession of the premises by a lessee after efflux of time or termination may not be lawful possession, but in any event it is a juridical possession protected by law against wrongful dispossession since he is a former tenant, relied on decision of the Hon'ble Supreme Court in the case of Kewal Chand Mimani (D) by Lrs v. S.K. Sen and Ors. : [2001]3SCR1056 . Learned Counsel also placed reliance on the decision of the Hon'ble Supreme Court in the case of Ambalal Sarabhai Enterprises v. Amrit Lal and Co. and Anr. : AIR2001SC3580 to contend that the tenant under the Rent Act as well as the lessee whose lease has been determined stand almost on the same footing and therefore a distinction cannot be made for the purpose of jurisdiction.

30. However what is noticed is that in the latter judgment the view of the Hon'ble Supreme Court was under a totally different set of circumstances where a tenant protected under the Rent Act sought to challenge the amendment to withdraw certain protection which was available. While upholding such amendment the Hon'ble Supreme Court had come to the conclusion that a tenant under the Rent Act has no vested right so as to challenge the amendment and it is not a circumstance where the Hon'ble Supreme Court declared that a statutory and non-statutory tenant are one and the same in status. Therefore the said decision is of no assistance to place the tenant under the Rent Act as well as the lessee whose lease has been determined on the same pedestal. Further the contention of Sri Nandagopal, learned Counsel by referring to Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act, to indicate estoppel against the tenant and the right of re-entry to the landlord under the circumstances would not in any way help in deciding jurisdiction. Further the decision referred to in the case of R.V. Bhupal Prasad v. State of Andhra Pradesh : AIR1996SC140 is also to the effect that juridical possession would continue even after determination as held in the other decisions noted above and similar to the view in the case of Kewal Chand Mimani and would not render assistance. In fact the Hon'ble Supreme Court in the case of Raptakos Brett and Co. Limited v. Ganesh Property : AIR1998SC3085 has held that wrongful possession is not distinct from unlawful occupation and a erstwhile tenant continues in possession because he cannot be physically thrown out without due process of law and the status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession. The settled position of law as enunciated by the Apex Court including in the case relied on by the learned Counsel would indicate that in the case of a non-statutory tenant whose tenancy has been determined continues to be in possession as erstwhile tenant and would not fall within the definition of tenant but would only be protected from unlawful eviction but his possession after determination would be wrongful possession without independent right to continue whereas a tenant under the Rent Act has a right to continue as protected under the Act.

31. Thus the question is whether the lessee/tenant whose term of tenancy has been determined and who continues to be in possession of the premises even though not entitled to in law can be sought to be evicted by approaching Small Causes Court keeping in view Section 8, 9 and also Article 4 of the Act. In the case on hand, the tenant is occupying the premises which is not governed by the provisions of the Rent Act and is not 'tenant' as defined but is a person who was tenant/lessee at the time of inception of the tenancy and has become unlawful occupant on determination as efflux in view of the legal fiction. As already noticed Sub-article (b) is an indication as to whether even in respect of such tenant the ejectment eviction suits could be filed before the Small Causes Court. Further as already noticed even though exception includes interest in the property such as rent, mesne profits, damages, compensation etc., Sub-article (b) provides that a suit is maintainable if the Small Causes Court has jurisdiction to entertain a suit for rent of the property. In this regard, Section 2(12) of the Code of Civil Procedure defines mesne profits. This indicates that the profits derived by the person in wrongful possession would have to pass on to the landlord and in the event, the landlord is unable to establish any higher profits than the quantum of amount which was being paid earlier as rent, in such circumstances, the same quantum would derive the nomenclature of mesne profits from the day his possession becomes wrongful. In this regard, the Division bench decision of this Court cited by Sri Shekar Shetty, learned Counsel in the case of B.S. Giridhar v. P.V. Shetty : ILR1984KAR1115 and MOCA v. Morzaria Products (P) Limited : ILR1991KAR1492 has held that the tenants under the Rent Act would continue to be tenants and the latter judgment has further held that in respect of such person even after determination the amount payable would be rent and not mesne profits. This has been correctly reflected upon by the Learned Single Judge in the situation in which it was before the Learned Single Judge in the case of Ramesh P. Seth v. M.S. Krishnamurthy : ILR2002KAR565 by placing reliance on a Division Bench ruling in the case of B.S. Giridhar cited supra. That being so, in our view, the converse is that in the case of an erstwhile tenant who is not a statutory tenant in view of the premises not being governed by the Rent Act, the consideration payable for such unlawful, wrongful and juridical possession as tenant at sufferance is mesne profits, damages or compensation and not rent.

32. Therefore if Sub-article (b) is kept in view and if Sub-article (c) is analysed, it would indicate that the point at which the landlord seeks ejectment of such person by filing a suit would be in a circumstance where the tenancy has come to an end by efflux of time or determined by notice or permission to occupy has been withdrawn which means at the point of filing the suit, this eventuality would have arisen and that would be the only substantial issue to be decided unless and otherwise any other defence is put forth by the erstwhile tenant. At this stage, we would do well to pause and notice all the decisions of the learned Single Judge on this subject in the case of BaduvaKunhibeary v. Venkatesha Shanbhogue 1972 (1) MLJ 211, Monappa Mulya v. Kusuma Shetty 1971 (2) MLJ 356, Sheena Bhandary v. Thanuja Bhandary 1970 MLJ SN 310, Hanumantha Acharya v. Madhavaprabhu 1988 (2) KLJ 362, Laxminarayana Rao v. Janardha Shettigara : AIR1994Kant105 and B. Krishnappa v. Chandrika G. : ILR2006KAR4704 were all rendered in a circumstance where only the substantial question as contemplated in Sub-article (c) was involved in the facts of those cases but the effect of Article 4 as a whole was not considered and as such the decisions cannot be considered as precedents to decide the proposition. But the most distinguishing feature between a tenant as defined and an erstwhile tenant is that on such day the consideration payable cannot be termed as 'rent' in respect of erstwhile tenant since the possession would have become wrongful possession. If this is kept in view, it would be clear that for a suit for ejectment to be maintainable as per Article 4, before the Small Causes Court, Sub-article (a) prescribes the pre-requisite and Sub-article (c) prescribes the scope of enquiry which indicates the summary nature and it is Sub-article (b) which holds the key to deciding the jurisdiction when all the three are read conjunctively since the words 'would be competent to take cognizance of a suit for rent of the property' as contained in Sub-article (b) would assume all importance, more particularly the words 'would be' which denotes that as on the date of presenting the suit to the Small Causes Court, the Court should be competent to take cognizance of a suit for rent. The term 'rent' can be used only in respect of a tenant and not otherwise. Therefore on that particular day, the Small Causes Court would not have jurisdiction to entertain the suit in view of Sub-article (b), unless he is a tenant of a premises to which the Rent Act is applicable which continues his status as tenant. Having said this, if Section 43 of Rent Act is perused, it takes care of the requirement of Sub-articles (a) and (c) and Section 45 of Act emphasises the right of the landlord to receive rent even at the stage of ejectment as envisaged under Sub-article (c) to Article 4 of the schedule. The reliance placed by Sri Surana, learned Counsel to the decision of a learned Single Judge in the case of Motwane Private Limited v. Mohd. Asif (D) by Lrs. 2006 (1) AIR Karn 61 cannot be of any assistance since it has proceeded only on the basis that there was no prayer for rent and in any event in view of our analysis of this aspect, we are not persuaded by the same. In the words of Scrutton, L.J. 'You do sometimes read 'or' as 'and' in a statute. But you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. In the cited decision, there is no such obligation explained and therefore, we would have to read it as it exists.

Conclusion Regarding Jurisdiction

33. Hence, the resultant effect is that the legislature while excepting a suit for possession has carved out ejectment and qualified the same by carving out rent from the excepted category of interest in the property and combining it with element and then making it possible for the Small Causes Court only to eject the tenant who continues to pay (the consideration of rent) and Sub-article (a) and (c) ensure the summary nature of the proceedings which is further complimented by Sections 43 and 45 of Rent Act. Therefore the irresistible conclusion can only be that in respect of a tenant/lessee who is not protected under the Rent Act ejectment suit would not be maintainable before the Court of Small Causes since the Court would not have the jurisdiction to take cognizance of such a suit and could be instituted only before the Civil Court even if bare ejectment is sought.

34. On considering all the propositions put up before us and on analysis and interruption, our conclusion to the three questions raised are as follows:

Proposition No. 1:- Can Small Causes Court take cognizance of only such suits which are filed seeking ejectment of tenants of the premises to which the Karnataka Rent Act applies and not in respect of tenants who occupy the premises and whose tenancy has been determined or come to end since in such case the remedy is only before the Civil Court?

Answer- Affirmative

The Small Causes Court can take cognizance only of such suits which are filed seeking ejectment of tenants of the premises to which Karnataka Rent Act applies and not in respect of the tenants/persons who occupy other premises to which the Act does not apply and whose tenancy has been determined or has come to an end either by efflux of time or by withdrawal of the same.

Proposition No. 2:- Can Small Causes Court take cognisance of suits filed seeking ejectment and rent even in respect of the premises to which Karnataka Rent Act is not applicable, subject to there being no prayer for mesne profits, damages and/or compensation, provided the valuation of the same being within the pecuniary jurisdiction?

Proposition No. 3:- Can Small Causes Court take cognisance of suits filed seeking ejectment, rent, damages mesne profits etc., even in respect of the premises to which Karnataka Rent Act is not applicable, provided the valuation of the same being within the pecuniary jurisdiction?

Answer - Negative

In respect of the ejectment of the tenants in respect of the premises to which the Karnataka Rent Act does not apply, relief would have to be sought for by filing an appropriate suit before the City Civil Judge Court which alone can entertain such suits even if bare ejectment or revetment and arrears of rent is sought.

Regarding The Confusion On Three Judgments Of this Court:

1. Ramesh P. Seth v. M.S. Krishnamurthy and Anr. (SUPRA)

2. Bangalore Printing and Publishing Co. Limited v. Soukar T. Premnath : ILR2004KAR98

3. Khandelwal Brothers Co. Limited v. G.S. Nisar Ahmed : ILR2004KAR2864 .

35. From the arguments addressed before us, there appears to be some confusion in respect of these three judgments rendered by the respective Hon'ble Single Judge of this Court and hence, we think it fit to clarify the position.

36. The decision in the case of Ramesh P. Seth (Supra) referred to supra is with regard to a tenant defined under Section 3(r) of Karnataka Rent Control Act. In such cases no Court would have jurisdiction to grant prayer for damages or mesne profits and such a prayer would be redundant and the Court would proceed only for ejectment and rent. As such the learned Single Judge keeping in view the provisions of the K.R.C. Act has rightly held that the question of damages does not arise and has held that the suit for ejectment and rent is maintainable before Small Causes Court. In the case of Bangalore Printing and Publishing Co. Limited v. Soukart. Premnath (Supra), it is under the provisions of Karnataka Rent Act, 1999. Though the reasoning adapted is not similar to our reasoning, the conclusion arrived at by the learned Single Judge is that in respect of a premises which is not governed by Rent Act, the jurisdiction to file suit is before the Civil Court which is similar to our view and as such the said decision is the correct view as to its conclusion in so far as deciding jurisdiction is concerned. With regard to the decision in the case of Khandelwal Brothers Co. Limited v. G.S. Nisar Ahmed (Supra) which is also under Rent Act, 1999, the learned Single Judge insofar as mesne profits and damages has held that suit would not be maintainable before Small Causes Court but a suit for ejectment only would be maintainable and written statement would decide jurisdiction. This view is taken by referring only to Sub-article (c) of Article 4, whereas in our order we have examined the conjoint scope of (a) (b) and (c) and have held that a suit even for ejectment in respect of an erstwhile tenant of a premises not governed under the Rent Act also is not cognizable by the Small Causes Court and as such we cannot uphold the view taken by the learned Single Judge to that extent.

37. Though large number of revision petitions are referred to the Division Bench, as already noted without considering the facts, pleadings and evidence and more importantly points for reference, we deem it proper to refer all cases back to the learned Single Judge, to decide the cases in accordance with law and in the light of the proposition decided in the lead case C.R.P. 101/2004.

On The Facts Of This Revision Petition:

38. Having decided the question of law with regard to jurisdiction, it is time now to advert to the facts involved in this case. The undisputed fact is that the premises in question bearing No. 675/B, Kodigehalli, Yelahanka Hobli, Bangalore North Taluk measures more than 14 sq meters and the monthly rent is Rs. 1,600/-. The learned Counsel for respondent sought to contend that since the annual rent of the premises comes to Rs. 19,200/- and the valuation as per Section 41(2) of the Karnataka Court Fees and Suits Valuation Act being within the pecuniary jurisdiction and further since the Small Causes Court has not granted damages the order dated 30.10.2003 is sustainable. But in view of our decision on this contention and since in the present case the premises measures more than 14 sq meters and being outside the purview of the Rent Act, the Small Causes Court could not have taken cognizance and as such the judgment dated 30.10.2003 is not sustainable and the same is accordingly set aside. The matter is remitted to the Small Causes Court to return the plaint to the plaintiff to present it before the appropriate forum.

39. But before we part, we cannot ignore the plight of the respondent herein who in fact had chosen the appropriate forum and filed the suit in O.S. No. 9263/1999 before the City Civil Court in 1999 since the lease expired on 10.4.1999, but the Civil Court had returned the plaint by applying the decision in the case of Ramesh P Seth v. Krishnamurthy (Supra) and as such the respondent filed it before the Small Causes Court in SC No. 161/2003 and the same was decreed. But in view of our decision, the respondent would have to re-approach the Civil Court. In our view, at the first instance itself the Civil Court had wrongly applied the decision in Ramesh P. Sethi's Case to the facts in this cases. The maxim 'actus curiae neminem gravabit' i.e., the act of Court should prejudice no man would apply and the person would have to be put back to the earlier position as held by the Hon'ble Supreme Court in the case of Jang Singh v. Brij Lal : [1964]2SCR145 . In the facts of this case, the respondent no doubt cannot be given the benefit of a decree passed without jurisdiction. But the Court cannot shirk its responsibility of providing legal solace atleast to the extent possible. As such on refiling of the plaint before the Civil Court, the same would have to be taken on its original number in O.S. No. 9263/1999 by restoring the same and the first date shall be given as 10.8.2007 on which day the petitioner herein also shall appear without expecting fresh notice and thereafter the case shall be taken up from the stage at which it rested when the plaint was returned and dispose of as expeditiously as possible but not later than six months from 10.8.2007. That apart if the respondent makes out a case for decree, the time lapse from 1999 shall also be kept in view while granting time to vacate.

40. In the result the revision petition is allowed and order dated 30.10.2003 is set aside subject to the above observations.