2009 Supreme(Kar) 280

High Court of Karnataka
THE HONOURABLE MR. JUSTICE S. ABDUL NAZEER
Sri. Anantswami S/o. Govindswami
Versus
Mrs. Radha Srinath W/o. late Srinath & Another
Regular First Appeal No.389 of 2006 (RES)
Decided on : 22-04-2009

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 9: [S.Abdul Nazeer,J] Jurisdiction of Civil Court - Held, The jurisdiction of Civil Courts to pass an order of eviction of the premises governed under the Karnataka Rent Act, 1999 Act is ousted by necessary implication. Section 9 of the Code of Civil Procedure confers jurisdiction upon the Civil Courts to determine all disputes of a civil nature unless the same is barred by statute either expressly or by necessary implication. The bar of jurisdiction of a Civil Court is not to be readily inferred. The exclusion of jurisdiction would normally be an exception. Courts generally construe the provisions strictly when jurisdiction of a Civil Court is claimed to be excluded. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the enquiry may be decisive. An implied bar may arise when a statute provides a special remedy to an aggrieved party like a right of appeal. Therefore, each case requires examination as to whether the statute provides right and remedies and whether the scheme of the Act is that the procedure provided will be conclusive and thereby excides the jurisdiction of the Civil Court in respect thereof. There is no absolute right in any one to demand that the dispute be adjudicated upon only by a Civil Court.

       TRANSFER OF PROPERTY ACT, 1882 - Section 8: [S.Abdul Nazeer,J] Conveyancing - Construction of document - Legal nature and effect of a document - Ascertainment of reality of the transaction - Held, Nomenclature does not determine the character of the document. Predominant intention of the parties, terms and recitals of the document is paramount. The name given by the parties to a document is not conclusive as to its real legal nature and effect. The nomenclature does not a determine the character of the document but the substance, which must be looked into to decide its nature. It is also necessary to find out the intention of the party executing it, while construing a document. The intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances. How the parties have treated the deed is also a relevant factor while determining its character. When the document is of a composite character disclosing features of both mortgage and lease, it need not necessarily be taken as a mortgage. The Court will have to find out predominant intention of the parties executing the document viewed from essential aspect of the reality of the transaction.-The mortgage contemplates the taking of a loan and delivering possession to secure payment of the loan, the relationship being that of a creditor and debtor. On facts held, A careful perusal of the various clauses in Ex.P.1 makes it clear that the transaction in question is not a loan transaction. The property in question has not been transferred as a security for the debt. Therefore, it does not create the relationship of the mortgagor and mortgagee. The 1st plaintiff has handed over the possession of the suit schedule property to the defendant on payment of Rs.30,000/- towards advance, refundable at the time of vacating of the house. The said advance of Rs.30,000/- does not carry any interest. The remaining sum of Rs.60,000/- is payable from time to time for a period of 24 months. In other words, it amounts to payment of 2,500/- per month to the 1st plaintiff by the defendant. A reading of Ex.P.1 as a whole indicates that the 1st plaintiff had let out the premises in question to the defendant on a monthly rent of Rs.2,500/- and an advance of Rs. 30,000/- which would be refundable at the time of vacating the said premises.

       KARNATAKA RENT ACT, 2001 - Section 50: [S.Abdul Nazeer,J] Bar of jurisdiction of Civil Courts in respect of certain matters - Held, The express bar to entertain a suit under Section 50 is limited to matters relating to fixation of fair rent or to any other matter which the Controller is empowered to decide by or under the Act. Therefore, it should not be understood that the Civil Court has jurisdiction to entertain a suit for eviction of a tenant from a premises covered under the provisions of the Act. The non-obstante clause contained in the opening part of sub-Section (1) of Section 27 makes it clear that the order or decree for recovery of possession of any premises defined in Section 3(i) of the Act shall be made by the Court, District Court or High Court in favour of the landlord against a tenant in accordance with sub-Section (2) of Section 27 of the Act.

       KARNATAKA RENT ACT, 2001 - Section 43: [S.Abdul Nazeer,J] Dispute of relationship of Landlord and Tenant - Plea of Oral lease - Denial of Jural relationship by either party - Suspicion as to genuine existence of the document of lease - Duty of the Court - Stoppage of further proceedings -No eviction order - Parties to be relegated to competent Civil Court - Held, As per the provisions of Section 43 of the Act that if in the opinion of the Court there is a reason to suspect the genuine existence of the document of lease or receipt of acknowledgment of payment of rent, the Court shall at once stop all further proceedings before it and direct the parties to approach a competent Court of civil jurisdiction for appropriate reliefs. The said provision does not empower the Civil Court to pass an order of eviction. It provides for declaration of their rights in respect of the property in question.

       KARNATAKA RENT ACT, 2001 - Section 3(c): [S.Abdul Nazeer,J] "Court" - Embargo contained in sub-section (1) of Section 27 of the Act - Jurisdiction of the Civil Court to direct delivery of possession - Held, Definition of the word "Court" does not include ordinary Civil Court - ’Court’ has been defined in Section 3(c) of the Act, which means the Court of Small Causes in so far as the areas comprised within the limits of the City of Bangalore. Sub-Sections (ii) and (iii) of Section 3(c) specifies the territorial jurisdiction of the Courts in respect of the other areas in the State of Karnataka. The word ’Court’ does not include the ordinary Civil Courts because it specifies the Courts which alone can have jurisdiction to pass an order for recovery of possession of the premises on one or more grounds enumerated therein. Therefore, it is not necessary to take the assistance of theory of exclusion of jurisdiction of Civil Courts by necessary implication. Having regard ot the embargo contained in sub-Section (1) of Section 27 of the 1999 Act, the Civil Court could not hve directed delivery of possession of the suit schedule premises. A tenant of a premises governed under the provisions of 1999 Act can be evicted if the landlord makes out a case under sub-Clause (2) of Section 27 of the Act. Further, the expression ’any Court’ contained in Section 21(1) of the 1961 Act has not been included in Section 27(1) of the 1999 Act. Section 27 of the Act starts with a non-obstante clause. It states that notwithstanding anything to the contrary contained in any other law or contract, no order or decree for recovery of possession of any premises shall be made by the Court, District Court or High court in favour of the landlord against the tenant except in accordance with sub-Section (2) of the said provision. The expression ’the Court’ has been defined in sub-Section (c) of Section 3 of the Act. A combined reading of these provisions make it clear that the Courts included in Section 3(c) alone have jurisdiction to pass an order of eviction from the premises defined under Section 3(i) of the Act. It is obvious that ordinary Civil Courts are not empowered to pass similar orders. Therefore, even if the word ’any Court’ has not been used in Section 27(1) of the 1999 Act, it does not make any difference. The defendant is the tenant of the suit schedule premises governed under the provisions of 1999 Act. The tenant in occupation of the premises after the termination of tenancy would continue to be a tenant. In the matter of determination of tenancy, the 1999 Act does not permit the landlord to snap his relationship with the tenant merely by serving notice to quit as provided in Transfer of Property Act. Section 111(g) of the Transfer of Property Act is not applicable because the tenancy is governed under the 1999 Act. Section 27(1) read with Section 3(c) of the 1999 Act excludes the jurisdiction of the ordinary Civil Courts to pass an order of eviction of a tenant from the premises governed under the said Act. Even otherwise, the jurisdiction of the Civil Court for the said purpose is ousted by necessary implication. The 1999 Act contains/creates a special right and provides for the determination of the right and further lays down all questions about the said right to be determined by the Court constituted thereunder. It also provides for a forum for challenging the order passed by the designated Court. Thus, the said Act is a complete Code in itself. The civil court having held that the respondent isa tenant under the plaintiffs in respect of the suit schedule premises, could not have directed delivery of possession of the said property. When the tenancy is governed under the provisions of 1999 Act, the Civil Court has no jurisdiction to pass a decree for possession of the suit schedule property.