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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

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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

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(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

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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

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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

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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

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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

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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

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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:

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“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

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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;

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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-

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(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

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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.

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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

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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:

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“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.

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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

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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

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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

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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

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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

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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.

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(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

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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

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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.

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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

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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.

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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

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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