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IN THE HIGH COURT OF BOMBAY
[NAGPUR BENCH]
B.G. Deo, J.
Wilfred Lovette.... Applicant.
Versus
Ganesh s/o Hemraj Karmarkar.... Non-applicant.
Civil Revision Application No.741 of 1986, decided on 9-11-1987.
Advocates appeared :
R.B. Pendharkar, for applicant.
P.G. Palshikar, for non-applicant.
Besides as would be seen later, the question of jurisdiction of the Small Causes Court to entertain the suit itself, by virtue of the defence raised under Section 53-A of the Transfer of Property Act, had to be determined first before the question of the Rent Controllers finding being res judicata in a civil suit arose. Besides, a plea of "res judicata" should be specifically pleaded and if not raised it will be deemed to have been waived. It is not enough to say that the suit is barred by res judicata in view of Explanation VIII to Section II of the Civil Procedure Code. It should have been pleaded by the non-applicant plaintiff, in view of the decision of the Rent Controller (who had though a limited jurisdiction) that the applicant-defendant was the tenant of the non-applicant plaintiff that the said finding was res judicata by virtue of Explanation VIII to Section II of the Civil Procedure Code. A pleading to that effect was absolutely necessary. Otherwise, it can be said that the non-applicant plaintiff did not treat the question of relationship of landlord and tenant between the parties as a closed issue as he had waived the plea of res judicata. The suit before the learned Small Cause Judge was a suit for ejectment on the ground that the defendants tenancy was determined by a quit notice. The defence was that the defendant was not a tenant but an owner as he had entered into an agreement of sale between the vendor of the non-applicant plaintiff and himself, by virtue of an agreement in writing dated 18-2-1975 and he had also continued in possession as such and not as a tenant.
Section 11-Provincial Small Causes Courts Act, 1887-Section 15, Schedule II-Clause 4 (c)-Suit for eviction in Small Causes Court-Jurisdiction of-No jurisdiction.
When a transferee takes possession of the property in part performance of the contract or continue to remain in possession as such, and dues some act in furtherance of the contract and is willing to perform his part of contract, then, although the transfer has not been completed in the manner prescribed, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract (emphasis supplied). The appellant has raised a plea and has pleaded all the ingredients of defence of part contract is in writing. According to the applicant, he continues in possession, that he has paid municipal taxes, repaired the house in furtherance of the contract that he is ready to perform his part of the contract etc. All this needed investigation as it related to a right in respect of immoveable property superseding the right of tenancy with the original vendor. Such an investigation could not have been embarked upon by the Small Causes Court.
The present suit was suit for eviction before the leared Small Causes Judge. A defence has been raised under Section 53-A of the Transfer of Property Act as a shield for debarring the non-applicant plaintiff to claim possession. The plea has given rise to a substantial issue which had to be decided in a regular Court and not in a Small Causes Court, in view of Section 15 and clause (4) of the Second Schedule of the Provincial Small Causes Courts Act.
In the present case, the question is different here the specific plea has been raised under Section 53-A of the Transfer of Property Act which would debar the plaintiff from ejecting the defenant. No doubt, specific issue has been raised by the written statement relating to an interest in the immoveable property which, if proved, would non-suit the plaintiff. In such a situation, it must be held that as soon as, in an ejectement suit which otherwise be cognizable by a Small Cause Court, a defence is raised in the written statement under Section 53-A of the Transfer of Property Act, the suit itself goes out of jurisdiction of the Small Cause Court to decide the substantial issues involved in the suit and the Small Causes Court, in such a situation, has to return the plaintiff with the written statement for presentation to proper regular Court having jurisdiction to decide the suit.
PROVINCIAL SMALL CAUSES COURTS ACT, 1887
Section 15, Schedule II Clause 4 (c)
See The Code of Civil Procedure, 1908, Section 11.
Section 53-A
See Code of Civil Procedure, 1908, Section 11.
2. Incidentally, it has also to be considered whether a Division Bench ruling of this Court in (Prabhakar Atmaram Kale v. Bharat Santaji More and another)1, reported in 1983 Mh.L.J. 426, holding inter alia that the effect of Explanation VIII to section 11 of the Civil Procedure Code is that the finding of the Rent Controller under Clause 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, holding existence of relationship of landlord and tenant between the parties, is res judicata in a Civil Suit filed by the landlord and that the defendant cannot seek to have the same question adjudicated in the Civil Court, need re-consideration and a reference to a larger Bench.
3. The facts giving rise to this litigation may be stated thus. The applicant-defendant was a tenant of the non-applicant plaintiff's vendor. He had occupied two blocks on the first floor of Municipal House No. 44 situated in Ward No. 60, New Colony, Naya Basti, Nagpur, The non-applicant plaintiff purchased the entire House No. 44 from the original landlord of the applicant -defendant by virtue of sale-deed dated 7-2-1979 (Exhibit 52 copy). According to the non-applicant plaintiff, the applicant-defendant was his tenant occupying two blocks on the first floor of the house on a monthly rent of Rs. 55/-, the tenancy commencing from the first day of each English calendar month. The plaintiff obtained permission of the Rent Controller to determine the tenancy of the defendant in Revenue Case No. 494/A-71(2/1978-79) vide his order dated 16-2-1981 and determined the tenency of the defendant in respect of the suit premises with effect from 31st March, 1981 by serving him with a quit notice dated 19-2-1981 received by the defendant on 14-3-1981. The defendant did not comply with the notice and did not vacate the suit premises.
4. The plaintiff, therefore, filed Civil Suit No. 592 of 1981 in the Court of Small Causes Judge, Nagpur, for ejectment of the defendant, for possession of the suit premises, for recovery of arrears of rent and for mesne profits and notice charges.
5. The said suit came to be decreed ex parte on 21-9-1981. The ex parte decree was set aside and the suit was restored to file. The defendant filed written statement (Exhibit 15) on 22-10-1982 which came to be amended on 27-9-1983. The applicant defendant denied the relationship of landlord and tenant as between the plaintiff and himself and defended his possession under section 53-A of the Transfer of Property Act, by virtue of an alleged agreement of sale executed by the vendor of the non-applicant plaintiff on 18-2-1975. According to the defendant, he had agreed to purchase the entire house of which the suit premises are a part from Surinder Singh, the vendor of the non-applicant plaintiff, in consideration of Rs. 17,000/- by an agreement of sale in writing on 18-2-1975 and had paid the earnest money
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