1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER, 2013
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
C.R.P.NO.474/2013
BETWEEN: SMT. PREMA W/O KRISHNAMURTHY AGED ABOUT 49 YEARS R/A NO.714, 3RD STAGE, 3RD BLOCK, 8TH MAIN,
BASAVESHWARANAGAR BANGALORE-560079 REPRESENTED BY SPECIAL POWER OF ATTORNEY HOLDER KRISHNAMURTHY
AGED ABOUT 62 YEARS R/A NO.714, 3RD STAGE 3RD BLOCK, 8TH MAIN, BASAVESHWARANAGAR BANGALORE-560079 ..PETITIONER
(BY SRI.S.V.BHAT, ADVOCATE FOR SRI.BASAVARAJ R.BANNUR, ADVOCATE) AND: DAYANAND
S/O T.GIRIYAPPA
2
AGED ABOUT 49 YEARS R/A NO.42, 16TH CROSS, 8TH MAIN RAOD, MALLESHWARAM,
BANGALORE-560055 ..RESPONDENT (BY SRI.G.SUKUMARAN & SRI.R.SHIVAKUMAR, ADVOCATE FOR M/s.G.SUKUMARAN & ASSOCIATES)
THIS CRP IS FILED UNDER SECTION 18 OF THE KARNATAKA SMALL CAUSES COURTS ACT, 1964 READ WITH SECTION 115 OF CPC, AGAINST THE ORDER DATED 09.10.2013 PASSED ON IA NO.3 IN MISCELLANEOUS NO.130/2013 ON THE FILE OF THE IV ADDL. JUDGE, COURT OF SMALL CAUSES, BANGALORE, (SCCH 6),
ALLOWING THE IA NO.3 FILED UNDER ORDER 7 RULE 11(d) OF CPC., AND ALSO REJECTING THE PETITION.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Plaintiff’s revision under section 18 of Court of Small
Causes Act, 1964 read with section 115 of C.P.C questioning
the correctness and legality of the order passed by IV
Additional Small Causes Judge, Bangalore dated 09.10.2013
in Miscellaneous Petition 130/2013 whereunder application
filed by defendant/respondent under Order VII Rule 11(b) and
3
(d) of C.P.C seeking rejection of petition filed under Order XX
Rule 12 of C.P.C has been allowed and petition has been
rejected for want of Pecuniary jurisdiction under Small
Causes Courts Act has been called in question.
2. I have heard the arguments of learned advocates
appearing for the parties namely Sriyuths Sri.S.V.Bhat,
learned counsel appearing for revision petitioner/plaintiff and
Sri.Sukumaran, learned counsel appearing for
respondent/defendant. Though, only question of law is
involved in this revision petition a brief reference to facts
would suffice and parties are referred to as per their rank in
trial court.
3. Petitioner filed O.S.6523/2009 for ejectment of
defendant from suit schedule property and for mesne profits
from 01.12.2008 till date of handing over vacant possession
of suit schedule premises. In view of law laid down by Full
Bench of this court in Abdul Wajid Vs A.S.Onkarappa
4
reported in ILR 2011 Karnataka 229 same came to be
transferred to Small Causes Court and it was renumbered as
S.C.2628/2011. Said order of transfer came to be questioned
by the petitioner in W.P.35279/2011 unsuccessfully. Order
of transfer came to be affirmed on 21.09.2011. Thereafter
parties tendered their evidence and on adjudication of claim
on merits court of Small Causes decreed the suit on
01.04.2013 in part and directed the defendant to quit and
hand over vacant possession of premises and ordered for
separate enquiry to determine mesne profit till actual
possession is delivered. This order came to be affirmed by
this court in C.R.P.188/2013. Thereafter petitioner filed a
petition under Order XX Rule 12 of C.P.C seeking for
determination of mesne profits and said petition came to be
numbered as Miscellaneous petition 130/2013. Power of
attorney holder of petitioner was examined as PW-1 and 20
documents were got marked as Exhibits P-1 to P-20. When it
was at the stage of cross examination of PW-1
respondent/defendant who had filed statement of objections
5
denying the claim made by the petitioner filed an application
under Order VII Rule 11(b) and (d) seeking for rejection of
petition contending interalia that the relief claimed is
undervalued and barred by law. Said application came to be
contested by petitioner and thereafter after considering the
rival contentions trial court allowed the application and
rejected the petition filed under Order XX Rule 12 of C.P.C.
Reason assigned by the trial court for allowing application
and rejection of the petition for determination of future mesne
profits was on the ground that claim put forth by petitioner
exceeds pecuniary jurisdiction of Small Causes Court and
same is barred under Karnataka Small Causes Court Act.
Hence, trial court allowed the application and rejected the
petition filed for determination of future mesne profits. It is
this order which is under challenge before this court.
4. It is the contention of learned counsel appearing for
petitioner that trial court committed a serious error in
dismissing the miscellaneous petition on the ground that it
6
has no pecuniary jurisdiction inasmuch as the amount
claimed in miscellaneous petition would not form basis for
the said court to clutch the jurisdiction and it is the original
claim made in the suit which would form the basis and as
such the conclusion arrived at by the trial court that claim
made in the petition exceeds its pecuniary jurisdiction is
erroneous and liable to be dismissed. He would draw the
attention of the court to the value made in the suit which was
`72,000/- and court fee was paid accordingly and while
decreeing the suit S.C.2628/2011 trial court has not
quantified the amount and it has only directed for
adjudication or determination of mesne profits as
contemplated under Order XX Rule 12 of C.P.C and as such
mere mentioning of the amount or quantification of the
amount in the petition under Order XX Rule 12 C.P.C would
not be the basis for adjudication of claim and amount so
claimed in the petition filed under Order XX Rule 12 would
not decide the forum of jurisdiction. He would also elaborate
his submission by contending that sub-rule (3) of Order XX
7
would clearly indicate that it is the court of original
jurisdiction to the claim of mesne profits and as such order of
trial court is erroneous. In support of his submission he has
relied upon the following Judgments:
1. AIR 1927 Bombay 83 – Ambadas Harirao Karante Vs
Vishnu Govind Boramanikar and others
2. AIR 1929 Bombay 337 –Krishnaji Vinayak Belapurkar Vs
Motilal Magandas Gujarati
3. AIR 1934 Patna 204 – Mt.Urehan Kuer Vs Mt.Kabutri
4. AIR 1937 Rangoon 320 – A.K.A.C.T Vs Chidambaram
Chettiar Vs A.L.P.R.S Muthia Chettiar
5. AIR (34) 1947 Cal 68 – Ganeshi Lal Sharma Vs
Smt.Snehalata Dassi, W/o Profulla Krishna Ghosh
6. AIR 1961 M.P. 67 – Kalyandas Anantlal Vs Gangabai and
others
7. AIR 1969 Raj 304 – Mahadeo Vs Hanumanmal and others
8. AIR 2004 H.P.11 –Mohan Meakin Ltd., Vs M/s.Internations
Trade and anr
8
9. 1992(4) Kar.L.J 218 – Malakajappa Andanappa Hampiholi
Vs State Bank of India, (ADB) Navalgund
5. Per contra, Sri.Sukumaran, learned counsel
appearing for respondent-defendant would raise an initial
objection with regard to maintainability of this very revision
petition contending interalia that trial court has exercised its
jurisdiction under Order VII Rule 11(b) and as such it is a
deemed decree as defined under sub-section(2) of Section 2 of
C.P.C and remedy available to aggrieved party is to file an
appeal and not revision and as such he contends that
revision petition is not maintainable in the present
circumstances. Elaborating his submission on merits of the
case he would submit that when petitioner himself has
quantified the claim amount in the petition filed under Order
XX Rule 12 of C.P.C which would prima facie indicate that
claim in the said petition exceeds pecuniary jurisdiction of
Small Causes Court under Section 8 read with Article 4 of
Schedule, trial court was fully justified in allowing the
9
application filed for rejection of petition and there is no error
committed by trial court calling for interference by this court.
He would also further contend that revision cannot be
construed as an appeal and there cannot be any
reappreciation of facts or evidence when this court is
exercising revisional jurisdiction and for this reason also he
prays for rejection of the present revision petition. In support
of his submission he has relied upon the following
Judgments:
1. 1999(3) KLJ 699 – R.K.Shivananda Vs Bellulli
Shivashankarappa alias Gurusiddappa
2. Unreported Judgment in Civil Appeal 3489/2003 in the
matter of Shiv Shakti Co-op. Housing Society, Nagpur Vs
M/s.Swaraj Developers and others disposed of on
17.04.2003.
6. Having heard the learned advocates appearing for
the parties I am of the considered view that following two
points would arise for consideration:
10
“1. Whether the revision petition filed under section
18 of the Karnataka Small Causes Court Act, 1964
is maintainable?
OR
“Whether the petitioner is required to challenge the
order dated 09.10.2013 by filing an appeal since the
order of rejection of plaint under Order VII Rule
11(b) is a deemed decree as defined under section
2(2) of C.P.C?
2. Whether there is any jurisdictional error or
material irregularity committed by trial court in
allowing the application filed by defendant under
Order VII Rule 11(b) (d) seeking rejection of petition
enabling this court to exercise revisional
jurisdiction under section 18 of Karnataka Small
Causes Court Act, 1964 and as such calling for
interference of said order by this court?
3. What order?”
7. In order to appreciate the rival contentions raised as
noticed herein above it would be appropriate or necessary to
extract relevant provisions which may have bearing on my
11
discussion, adjudication and conclusion that would be
arrived and as such they are extracted herein below:
CODE OF CIVIL PROCEDURE, 1908
Section 2(2):
(2) “decree” means the formal expression of an
adjudication which, so far as regards the Court
expressing it, conclusively determines the rights of
the parties with regard to all or any of the matters
in controversy in the suit and may be either
preliminary or final. It shall be deemed to include
the rejection of a plaint and the determination of
any question within [xxx] Section 144, but shall not
include-
(a) any adjudication from which an appeal
lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation – A decree is preliminary when further
proceedings have to be taken before the suit can be
completely disposed of. It is final when such
adjudication completely disposes of the suit. It may
be partly preliminary and partly final;
12
Though the term “decree” is defined as above,
there are other instances where an order of civil
court passed under Order 21 Rule 58 etc is made
appealable. It is time to amend Section 2(2) to
bring it in conformity with Order 21 Rule 46H and
Rule 103 as well as Rule 58 and Order 7 Rule 11(d),
determination of any question under Section 144
CPC.
A decree may be partly preliminary and partly
final, the same is binding (2008)8 SCC 198”.
6. PECUNIARY JURISDICTION:
Save in so far as is otherwise expressly provided,
nothing herein contained shall operate to give any
Court jurisdiction over suits the amount or value of
the subject-matter of which exceeds the pecuniary
limits (if any) of its ordinary jurisdiction.
ORDER XX RULE 12- Decree for possession and
mesne profits – (1) Where a suit is for the recovery
of possession of immovable property and for rent or
mesne profits, the Court may pass a decree-
13
(a) for the possession of the property;
[(b) for the rents which have accrued on the
property during the period prior to the institution
of the suit or directing an inquiry as to such
rent;
(ba) for the mesne profits or directing an inquiry
as to such mesne profits];
(c) directing an inquiry as to rent or mesne
profits from the institution of the suit until-
(i) the delivery of possession to the decree-
holder,
(ii) the relinquishment of possession by the
judgment-debtor with notice to the decree-
holder through the Court, or
(iii) the expiration of three years from the date
of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or
clause (c), a final decree in respect of the rent or
14
mesne profits shall be passed in accordance with
the result of such inquiry.
(3) Where an Appellate Court directs such an
inquiry, it may direct- the court of first instance to
make the inquiry, and in every case the Court of
first instance may of its own accord, and shall
whenever moved to do so by the decree-holder
inquire and pass the final decree”.
KARNATAKA SMALL CAUSES COURTS ACT,
1964:
Section 18 – Revision of decrees and orders of
Courts of Small Causes – The High Court, for the
purpose of satisfying itself, that a decree or order
made in any case decided by a Court of Small
Causes was according to law, may call for the case
and pass such orders with respect thereto, as it
thinks fit”.
8. There cannot be any dispute with regard to the
proposition that rejection of plaint shall be deemed to be a
decree as defined under sub-section(2) of Section 2 of C.P.C.
15
A perusal of section 6 would clearly indicate as to pecuniary
jurisdiction of the court which can exercise its power and it
would also indicate that there is saving insofar as said section
is concerned. By virtue of saving clause provided under
section 6 jurisdiction of a Small Causes Court is governed by
Karnataka Small Causes Court Act, 1964. Section 18 of
Small Causes Courts Act provides for exercise of revisional
jurisdiction by trial court and it reads as under:
Section 18 – Revision of decrees and orders of
Courts of Small Causes – The High Court, for the
purpose of satisfying itself, that a decree or order
made in any case decided by a Court of Small
Causes was according to law, may call for the case
and pass such orders with respect thereto, as it
thinks fit”.
9. In order to satisfy as to whether a decree or order
made in any case decided by a court of small causes, High
court exercising revisional jurisdiction can call for records,
examine the correctness or otherwise of such decree or order
and pass orders thereon as it deems fit. In view of express
16
provision of section 18 it cannot be gain said that revisional
jurisdiction of this court is ousted and aggrieved party will
have to take recourse to filing of an appeal as provided under
C.P.C. Infact the power vested to this court under section 18
for exercising revisional jurisdiction is much wider than
section 115 of C.P.C. Scope and power of revisional
jurisdiction under section 18 was the subject matter of
consideration by Co-ordinate Bench of this court in the case
of M/s.Savitha Theatre, Bangalore and anr Vs Union of India
reported in 1998(5) KLJ 308 and it has been held to the
following effect:
“Where Small Causes Court has placed burden of
proof on wrong party, admitted evidence which is
inadmissible, failed to examine material witnesses
and refused to draw legal presumption which ought
to have been drawn, its finding is to be held as not
in accordance with law - Revisional Court is entitled
to rectify legal error”.
It has been held as follows:
17
“7. I have applied my mind to the contentions of the
learned Counsels for the parties. The Karnataka
Small Causes Courts Act, 1964 as per its Section 18
provides for revision from the order of Judge Small
Causes Court to this Court. Section 18 of the Small
Causes Court Act reads as under.-
"Section 18. Revision from decrees and order of
Small Causes Court.--The High Court for the
purposes of satisfying itself that the decree and
order made in any case decided by a Court of Small
Causes was according to law, may call for the case
and pass such orders in respect of that as it thinks
fit".
A reading of this section per se reveals that
jurisdiction of this Court under Section 18 of the
Karnataka Small Causes Court Act is not so limited
as jurisdiction of this Court under Section 115 of
Code of Civil Procedure. Under Section 115 of Code
jurisdiction of this Court is confined to jurisdictional
error namely usurpation of jurisdiction not vested,
illegal refusal to exercise the jurisdiction vested or
where the Court is shown to have acted illegally and
with material irregularity in exercise of its
jurisdiction, that is confined to jurisdictional error.
18
The same is not the scope of Section 18 of the
Karnataka Small Causes Courts Act. It is wider. The
Court has to examine whether the overall decision
given by the Small Causes Court is according to law,
that it does not suffer from error of law and that
error of law whether it has affected the decision of
the case on merits. If it has committed error of law
or breach of law, then if the decision has the effect
in resulting in an erroneous finding and miscarriage
of justice then this Court may interfere. The
expression "according to law" has been the subject-
matter of consideration in many decisions and
finally in the case of Hari Shankar and Others v Rao
Girdhari Lal Chowdhury, their Lordships of the
Supreme Court observed as under.-
"The phrase "according to law" refers to the decision
as a whole, and is not to be equated to error of law
or of fact simpliciter. It refers to the overall decision,
which must be according to law which it would not
be, if there is a miscarriage of justice due to a
mistake of law. The section is thus framed to confer
larger powers than the power to correct error of
jurisdiction to which Section 115 is limited. But it
must not be overlooked that the section in spite of
its apparent width of language where it confers a
19
power on the High Court to pass such order as the
High Court may think fit,--is controlled by the
opening words, where it says that the High Court
may send for the record of the case to satisfy itself
that the decision is "according to law". It stands to
reason that if it was considered necessary that there
should be a rehearing, a right of appeal would be a
more appropriate remedy, but the Act says that
there is to be no further appeal".
Their Lordships made a reference to Section 25 of
the provisions of the Provincial Small Causes Courts
Act which is pari materia to Section 18 and their
Lordships observed.-
"The section we are dealing with is almost the same
as Section 25 of the Provincial Small Causes Courts
Act. That section has been considered by the High
Courts in numerous cases and diverse
interpretations have been given. The powers that it
is said to confer would made a broad spectrum
commencing, at one end, with the view that only
substantial errors of law can be corrected under it,
and ending, at the other, with a power of
interference a little better than what an appeal gives.
It is useless to discuss those cases in some of which
20
the observations were probably made under
compulsions of certain unusual facts. It is sufficient
to say that we consider that the most accurate
exposition of the meaning of such sections is that of
Beaumont, C.J. (as he then was) in Bell and
Company Limited v Waman Hemaraj, where the
learned Chief Justice, dealing with Section 25 of the
Provincial Small Causes Courts Act, observed:
'The object of Section 25 is to enable the High Court
to see that there has been no miscarriage of justice,
that the decision was given according to law. The
section does not enumerate the cases in which the
Court may interfere in revision, as does Section 115
of the Code of Civil Procedure, and I certainly do not
propose to attempt an exhaustive definition of the
circumstances which may justify such interference;
but instances which readily occur to the mind are
cases in which the Court which made the order had
no jurisdiction, or in which the Court has based its
decision on evidence which should not have been
admitted, or cases where the unsuccessful party has
not been given a proper opportunity of being heard,
or the burden of proof has been placed on the wrong
shoulders. Wherever the Court comes to the
conclusion that the unsuccessful party has not had
21
a proper trial according to law, then the Court can
interfere. But, in my opinion, the Court ought not to
interfere merely because it thinks that possibly the
Judge who heard the case may have arrived at a
conclusion which the High Court would not have
arrived at'.
This observation has our full concurrence".
10. The words “according to law” found in section 18 of
Small Causes Court Act would clearly indicate a decision that
would be arrived at by the court of Small causes as a whole
and as such it cannot be equated to an error of law or fact
simplicitor. It refers to overall decision rendered by court of
Small causes and it is in this background the revisional court
would exercise its jurisdiction to ascertain as to whether the
decision so rendered is in accordance with law. It is true that
this court exercising revisional jurisdiction would not
reappreciate the evidence inasmuch as it is not a court of
appeal and finding of fact would not be interfered with.
However, under the said guise if the order in question if
22
suffering from jurisdictional error or when there has been
material irregularity or when there has been non appreciation
of material evidence available on record it cannot be
construed as reappreciation of evidence inasmuch as decision
rendered by court below would not be in accordance with law.
As such this court’s power to exercise revisional jurisdiction
would not be taken away or would not be whittled down
under the said assumption. Infact Co-ordinate Bench of this
court in R.K.Shivananda Vs Bellulli Shivashankarappa alias
Gurusiddappa reported in 1999(3) KLJ 699 has held as
under:
“8. I have applied ray mind to the contentions
raised by the learned Counsel for the parties. The
scope of jurisdiction of this Court under Section 18
is limited to the question whether the decision is
according to law. The expression 'according to law'
has been interpreted in the case of Harishankar,
supra, with reference to Section 35 of Delhi-Ajmer
Rent Control Act, 1952 and with reference to
Section 25 of Provincial Small Cause Courts Act.
The revisional power under Section 25 of Provincial
23
Small Cause Courts Act and language of that
section is pari materia to that of Section 18 of the
Karnataka Small Causes Courts Act. What is the
meaning of expression 'according to law' their
Lordships of the Supreme Court observed in
paragraphs 8 and 9 as under:
"(8) The phrase 'according to law' refers to the
decision as a whole and is not to be equated to error
of law or of fact simpliciter. It refers to the overall
decision, which must be according to law which it
would not be, if there is a miscarriage of justice due
to a mistake of law. The section is thus framed to
confer larger powers than the power to correct error
of jurisdiction to which Section 115 is limited. But
it must not be overlooked that the section in spite of
its apparent width of language where it confers a
power on the High Court to pass such order as the
High Court might think fit, -- is controlled by the
opening words, where it says that the High Court
may send for the record of the case to satisfy itself
that the decision is 'according to law'. It stands to
reason that if it was considered necessary that
there should be a rehearing, a right of appeal would
be a more appropriate remedy, but the Act says that
there is to be no further appeal.
24
(9) The section we are dealing with, is almost the
same as Section 25 of the Provincial Small Cause
Courts Act. That section has been considered by the
High Courts in numerous cases and diverse
interpretations have been given. The powers that it
is said to confer would make a broad spectrum
commencing, at one end, with the view that only
substantial errors of law can be corrected under it,
and ending, at the other, with a power of
interference a little better than what an appeal
gives. It is useless to discuss those cases in some of
which the observations were probably made under
compulsion of certain unusual facts. It is sufficient
to say that we consider that the most accurate
exposition of the meaning of such sections is that of
Beaumont, C.J. (as he then was) in Bell and
Company Limited v Woman Hemraj, where the
learned Chief Justice, dealing with Section 25 of the
Provincial Small Cause Courts Act, observed:
"The object of Section 25 is to enable the High
Court to see that there has been no miscarriage of
justice, that the decision was given according to
law. The section does not enumerate the cases in
which the Court may interfere in revision, as does
Section 115 of the Code of Civil Procedure, and I
25
certainly do not propose to attempt an exhaustive
definition of the circumstances which may justify
such interference; but instances which readily
occur to the mind are cases in which the Court
which made the order had no jurisdiction, or in
which the Court has based its decision on evidence
which should not have been admitted, or cases
where the unsuccessful party has not been given a
proper opportunity of being heard, or the burden of
proof has been placed on the wrong shoulders.
Wherever the Court comes to the conclusion that
the unsuccessful party has not had a proper trial
according to law, then the Court can interfere. But,
in my opinion, the Court ought not to interfere
merely because it thinks that possibly the Judge
who heard the case may have arrived at a
conclusion which the High Court would not have
arrived at".
This observation has our full concurrence".
11. In the background of dicta laid down when the
facts on hand are examined it would clearly indicate that
petitioner had filed a miscellaneous petition under Order XX
26
Rule 12 of C.P.C to execute a preliminary decree passed in
S.C.2628/2011 and in the said proceeding an application
under Order VII Rule 11 (b) and (d) came to be filed which has
been allowed by court below has been called in question
invoking section 18 of Karnataka Small Causes Court Act,
1964 and section 115 of C.P.C. Though section 115 of C.P.C
would be inapplicable as rightly pointed out by
Sri.Sukumaran, learned counsel for defendant, I am of the
view that invoking section 18 of Small Causes Court Act is
just and proper and it cannot be construed or held that
present petitioner ought to have filed an appeal as it is a
deemed decree or in other words the petitioner ought not to
have filed revision petition in view of section 18 expressly
providing for exercise of revisional jurisdiction by this court
against the decree or order passed by court of small causes.
Hence, I am of the considered view this court is competent
and having jurisdiction to entertain a revision petition filed
under section 18 of Small Causes Courts Act and accordingly
Point No.1 is answered in the affirmative.
27
RE: POINT NO.2:
12. Though application was filed by respondent under
Order VII Rule 11 (b) and (d) trial court had allowed the same
only under Rule (d) and has rejected the application filed
under Order VII Rule 11(b) and same is not challenged and it
goes without saying that same has reached finality.
13. Insofar as allowing of application under Order VII
Rule 11(d) is concerned this court and Apex Court has
consistently held while examining an application filed for
rejecting a plaint under Order VII Rule 11(d), only averments
made in the plaint is required to be seen and no amount of
averments made in the objection statement or evidence
tendered by parties can be considered and it is the averments
made in the plaint alone that has to be taken into
consideration and nothing else. In this regard Judgment of
Hon’ble Apex Court in the case of Kamala and others Vs
K.T.Eshwara Sa and others reported in AIR 2008 SC 3174
28
and Hardesh Ores Pvt. Ltd., Vs M/s.Hede and Co. reported in
(2007)5 SCC 614 can be looked up.
14. In the instant case plaintiff in order to enjoy the
fruits of decree passed in S.C.2628/2011 filed a petition
under Order XX Rule 12 of C.P.C. Though amount has been
quantified in the said petition what is required to be
examined, looked into by the trial court i.e., Court of Small
Causes is preliminary decree which has been passed by the
competent jurisdictional court, i.e., court of small causes in
S.C.2628/2011. Decree passed by said competent court reads
as under:
“Suit is partly decreed.
Defendant is directed to quit, vacate and handover
the vacant possession of the suit property within
two months from the date of decree.
There shall be a separate enquiry to determine the
mesne profits from the date of suit till actual
possession is delivered.
29
Parties are directed to bear their own costs.
Draw decree accordingly”.
Sd/- Judge
15. This would clearly indicate that there was no
quantification of amount payable by defendant to plaintiff
under the said decree. Jurisdiction of court is determined on
the basis of valuation made in the plaint and there can be no
subtraction or addition to the said fact. In the instant case
valuation made in the original plaint would indicate that suit
was valued for the purposes of jurisdiction by determining
one year rent i.e., `72,000/- and court fee of
`4,650+`25=`4,675/- had been paid. It would be appropriate
to note at this juncture that suit in question was initially filed
in the City Civil Court having original jurisdiction. A petition
by way of interlocutory application was filed by defendant
contending interalia that said court did not have pecuniary
30
jurisdiction and it was the court of small causes. By virtue of
law laid down by Full Bench of this court in Abdul Wajid Vs
A.S.Onkarappa reported in ILR 2011 Karnataka 229 referred
to supra trial court had upheld the said contention raised by
defendant and directed return of plaint and transferred the
suit to the Chief Judge, Court of Small Causes, Bangalore on
the ground that it had no pecuniary jurisdiction to try the
suit. In other words it accepted the contention of defendant
by referring to the valuation made in the plaint which was
undisputedly `72,000/- vide order dated 12.08.2011. This
order came to be questioned by plaintiff/revision petitioner in
W.P.35279/2011 and said writ petition came to be dismissed
vide order dated 21.09.2011. It is thereafter trial court has
adjudicated the claim on merits and by its judgment and
decree dated 01.04.2013 decreed the suit in part as noticed
herein above. It also requires to be noticed that said
judgment and decree passed by trial court came to be
affirmed by this court in CRP 188/2013 by order dated
21.06.2013. When the matter rested at that, petitioner
31
seeking for determination of mesne profits filed a petition
under Order XX Rule 12 of C.P.C. The Hon’ble Apex Court
while examining as to whether a petition under Order XX
Rule 12 of C.P.C would be maintainable even though in the
original plaint plaintiff did not seek for said relief has held
that though it is not specifically asked for in the plaint the
discretionary power of the court under Order XX Rule 12
directing an enquiry into future mesne profits can be granted.
It has been held in the case of Gopalakrishna Pillai and
others Vs Meenakshi Ayal and others reported in AIR
1967 SC 155 to the following effect:
“7. Order 20 Rule 12 enables the Court to pass a
decree for both past and future mesne profits but
there are important distinctions in the procedure
for the enforcement of the two claims. With regard
to past mesne profits, a plaintiff has an existing
cause of action on the date of the institution of the
suit. In view of Order 7 Rule 1 and 2 xxxxx Order
XX O.20, Rule 12 apply. But in a suit to which
the provisions of Order 20 Rule 12 apply, the
32
Court has a discretionary power to pass a decree
directing an enquiry into the future mesne profits,
and the Court may grant this general relief,
though it is not specifically asked for in the plaint.
It has been also held by Hon’ble Apex Court that
proposition of law laid down by High Court of Andhra Pradesh
in AIR 1958 AP 517 does not lay down correct law and
concluded as under:
“In our opinion, this passage does not support
counsel’s contention. This Court made those
observations in a case where the plaint claimed
only declaration of title and recovery of possession
of immovable properties and made no demand or
claim for either past or future mesne profits or
rent. It may be that in these circumstances, the
suit was not one “for the recovery of possession of
immovable property and for rent or mesne profits”,
and the Court could not pass a decree for future
mesne profits under O.20, R.12 of the Code of Civil
Procedure. But where, as in this case, the suit is
for the recovery of possession of immovable
property and for past mesne profits, the Court has
33
ample power to pass a decree directing an enquiry
as to future mesne profits, though there is no
specific prayer for the same in the plaint. In the
aforesaid case, this Court did not lay down a
contrary proposition and this was pointed out by
Subba Rao, C.J., in Atchamma Vs Rami Reddy, ILR
1957 Andh Pra 52 at p.56: (AIR 1958 Andh Pra
517 at p.519)”.
Thus, it would indicate that averments made in the
original plaint which would confer the territorial jurisdiction
as well as pecuniary jurisdiction of the court.
16. In the instant case while considering the plea of
respondent at the first instance and upholding that City Civil
Court, Bangalore lacked pecuniary jurisdiction ordered for
the plaint to be returned to be presented before the Chief
Judge, Small Causes Court, Bangalore vide order dated
12.08.2011. Undisputedly, it is pursuant to the said order of
transfer Small Causes Court adjudicated the claim and
decreed the suit. Jurisdiction will be determined by valuation
34
made in the plaint and not by result of decree ultimately it
turns out to be for instance in a suit for accounts filed after
adjudication if the competent court were to arrive at a
conclusion that the plaintiff is entitled to much more than
what he has asked for or prayed for, it cannot be gain said
that such power to grant or mould the relief on the basis of
material evidence would not be available to the court
inasmuch as if it is found by court below taking into
consideration accounts filed by parties that the plaintiff is
entitled to much more than what he has sought for it is
empowered to decree the suit by moulding the relief. As to
whether court can entertain a suit for recovery of possession
of immovable property and for mesne profits based on the
valuation made in the plaint was examined by High Court of
Calcutta in the case of Ganeshi Lal Sharma Vs
Smt.Snehalata Dassi, W/o Profulla Krishna Ghosh
reported in AIR (34)1947 Calcutta 68 and it has been held
that subject matter of suit would form the basis or foundation
for the court to clutch the jurisdiction and not on the future
35
mesne profits which may be awarded and it may vary on
account of subsequent period also being taken into
consideration. It has been held as under:
“10. Mr. Ganguli further argues that the Munsif in
the present case was competent to try suits up to
the value of Rs.2000 and he had no jurisdiction to
pass a decree for khas possession as well as for
mesne profits amounting to Rs.1784 which had
the effect of raising the value of the suit to
Rs.2744 an amount admittedly beyond the
pecuniary jurisdiction of the Court. We do not
think that this contention is sound. On the
principle enunciated by a Full Bench of this Court
in [Bidyadhar Bachar v. Manindra Nath Das] 53
Cal.14, the jurisdiction of a Court to entertain a
suit for recovery of possession of immovable
property and for mesne profits would depend upon
the value of the property which is the subject-
matter of the suit and not on future mesne profits
which must vary according to the period for which
the defendant remains in possession of the
property. In the present case, the value of the suit
for purposes of eviction was rightly taken at
Rs.960, and even if we add to that the amount of
36
mesne profits claimed by the plaintiff up to the
date of the institution of the suit, the value would
not certainly exceed the Court's pecuniary
jurisdiction. Pendente lite mesne profits, whatever
their amount might be would not affect the
jurisdiction of the Court if the value of the suit at
the date of its institution was within its
jurisdiction. The first contention of Mr.Ganguli
must, therefore fail”.
17. Keeping these principles in mind when the facts on
hand are examined it would indicate that valuation made by
the plaintiff at the time of filing of suit was `72,000/- and
court fee has been paid accordingly and in view of section 8
read with Article 4 of schedule to the Karnataka Small Causes
Court Act, 1964 jurisdiction to try such suits was that of the
Small Causes Court and as such relying upon the judgment
of Full Bench of this court in the case of Abdul Wajid referred
to supra, plaint presented before the City Civil Court came to
be transferred to Small Causes Court. Merely because
revision petitioner has quantified the claim in the petition
37
filed under Order XX Rule 12 of C.P.C is beyond the
pecuniary jurisdiction of said court that would not oust the
jurisdiction of Small Causes Court. Either including claim in
the petition filed under Order XX Rule 12 or not specifying or
not quantifying the amount in original suit would not be
deciding factor for the forum in which such claim is to be
adjudicated. Consent or otherwise would not confer the
jurisdiction. Infact Rule 12 of Order XX would be a complete
answer to these aspects inasmuch as it would clearly indicate
that when appellate court finds that mesne profits is to be
adjudicated it would remit the matter to the court of first
instance irrespective of change of jurisdiction. Amended Rule
3 as applicable to the State of Karnataka would clearly
indicate that appellate court can direct the court of first
instance to make enquiry and in every case the court of first
instance either on its own accord and shall “whenever
moved to do so by the decree-holder inquire and pass the
final decree”. This would clearly indicate that it is the court
of first instance which would be the court which has to
38
adjudicate the claim for quantifying the mesne profits and
assertion or denial of quantum by respective parties would
not confer the jurisdiction on the courts. It is because of this
precise reason recourse will have to be taken to averments
made in the original plaint and on the basis of such
averments the court can clutch jurisdiction and adjudicate
the claim and decree the suit. Infact Co-ordinate Bench of
this court had an occasion to consider this aspect in the case
of Malakajappa Andanappa Hampiholi Vs State Bank of
India, (ADB) Navalgund reported in 1992(4) KLJ 218 and it
has been held as follows:-
“2. The only contention that was advanced on
behalf of the revision petitioner is that Section 17
of the Karnataka Civil Courts Act (for short 'the
Act') which states that the jurisdiction of Munsiff
Court shall extend to a civil nature where the
value of the subject matter does not exceed
Rs.50,000/- and the value of the subject matter of
the Final Decree Proceedings in this case should
be taken as the amount due as on the date of
filing of the Final Decree Petition and not the value
39
of the subject matter of the suit. Therefore, it has
to be seen whether in a Final Decree Proceedings
where the value of the subject matter of the suit as
on the date of the institution of the suit should
guide the forum or whether the value of the
amount claimed in the Final Decree Proceeding
should decide the forum. In similar
circumstances, this Court in the Decision in, K.
Malkojl Rao @ Kapathappa v. Asst. Commnr. &
Land Acquisition Officer, Bellary, 1977(1) KLJ 173
while determining the forum for preferring the
appeal from the order of the Civil Judge, while
interpreting Section 19 of the Act has held that
what determines the forum of appeal is not the
amount in dispute but the amount or value of the
subject matter of the proceedings before the Civil
Judge's Court. This Decision has been followed, by
a Division Bench of this Court in the Decision in,
SPL. LAND ACQUISITION OFFICER v.
M.K.SUNTHANKAR by LRs, wherein the same
provisions viz. Section 19 of the Act had come up
for consideration and this earlier Decision of the
learned Single Judge had been followed, and the
fact that the amount of compensation awarded
plus the solatium and interest exceeded
40
Rs.1,00,000/- was held to be not a relevant
consideration for the purpose of determining as to
whether the appeal lies to this Court or the
District Court. It appears that even for
determining the forum for preferring the Final
Decree petition, for purposes of Section 17 of the
Act, it is value of the subject matter of the suit as
originally filed, that should determine the forum
and not the amount that is due as on the date of
the Final Decree application. The analogy with
reference to the Appeals referred to in the above
said Decisions would apply in all fours to support
this view even in relation to Section 17 of the Act,
so far as it pertains to the determining of the
forum for preferring a petition for grant of final
decree. It is not disputed that if that yard stick is
applied in view of the enhancement of the
pecuniary jurisdiction of the Munsiff as on the
date of the Final Decree petition, the suit was
cognizable by the Court of Munsiff and not the
Civil Judge”.
17. In the light of the discussion made herein above I
am of the considered view that jurisdiction of Small Causes
41
Court is not ousted or in other words the petition filed by
plaintiff under Order XX Rule 12 for adjudication or
quantification of mesne profits before Small Causes Court is
not taken away merely because the plaintiff has quantified
the amount in the said petition and trial court ought to have
examined the claim on the basis of averments made in the
original plaint and determined the damages or mesne profits
by taking into consideration evidence of the parties that
would be tendered and Small Causes Court would be within
its jurisdiction to examine the said petition. Hence, Point
No.2 is to be answered in the negative and it is answered
accordingly.
For the reasons aforestated following order is passed:
ORDER
1. Revision Petition is hereby allowed.
2. Order passed on I.A.3 by Small Causes Judge, in
Misc.P.130/2013 dated 09.10.2013 is hereby set aside.
42
3. I.A.3 filed under Order VII Rule 11(d) is hereby
dismissed.
4. Trial court is directed to proceed with the petition on
merits and in accordance with law.
5. Since both the parties are represented they are directed
to appear before trial court on 20.01.2014 without
waiting for copy of this order.
Sd/- JUDGE SBN