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Kittamma and anr. Vs. B. Subba Rai and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 619 of 1958
Judge
Reported inAIR1959Kant75; AIR1959Mys75; (1958)36MysLJ634
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 and 151 - Order 39, Rules 1 and 2; Madras Buildings, Lease and Rent Control Act - Sections 12(4)
AppellantKittamma and anr.
RespondentB. Subba Rai and anr.
Appellant AdvocateG.K. Govinda Bhat, Adv.
Respondent AdvocateMohandas N. Hegde, Adv.
Excerpt:
.....or disqualify any tenderer. - , the validity or otherwise of the order of eviction against the petitioners has yet to be decided in the suit filed by the petitioners, and it is undesirable to settle or pronounce upon the facts in dispute at this interlocutory stage, i am confining my attention only to such facts as are admitted by the parties or found by the courts or clearly appear from the undisputed records. while holding that subba rai was really ill, he rejected the second ground for eviction on the view that he could as well live with his daughter in mangalore or at any rate in another house in mangalore belonging to his joint family. it is well established that during the pendency of such suit, a court will decline to grant a temporary injunction if the plaint and the..........the injunction asked for.3. in the arguments before me the contention that the courts have inherent jurisdiction to issue injunctions apart from the provisions of the code of civil procedure has been abandoned. the learned counsel has confined his arguments to substantiate the contention that the petitioners have made out the existence of such an injury as is contemplated under rule 2 of order 39 justifying the issue of a temporary injunction pending the disposal of the suit claiming a permanent injunction.he has also contended that on the erroneous view that the principles of law prevented them from issuing an injunction in this case, the courts below have not at all exercised their discretion vested in them regarding the question whether or not such an injunction should issue. the.....
Judgment:
ORDER

A. Narayana Pai, J.

1. The petitioners before me have filed Original Suit No. 7/1958 before the Court of the District Munsiff of Mangalore for a declaration that the order of eviction passed by the appellate authority (the Principal Subordinate Judge of South Kanara) in Civil Miscellaneous Appeal No. 11/1953 on his file is without jurisdiction, ultra vires and is a nullity, and for an injunction restraining the defendants (respondents before me) from executing the said order and taking possession of the house, door No. 22-4, with its outhouses and appurtenant land without payment of compensation for the said house.

Along with the plaint they filed interlocutory application No. 14 of 1936 under Section 151 and Order 39 Rules 1 and 2 of the Code of Civil Procedure for the issue of a temporary injunction to restrain the respondents from executing the aforesaid eviction order and obtaining possession thereunder pending disposal of the suit.

An ex parte injunction was granted, but the same was vacated after notice by the order dated 12-2-1958. The petitioners appealed against it in Civil Miscellaneous Appeal No. 2/1958 on the fileof the Court of the District Judge, South Kanara. That appeal was also dismissed. The revision petition is directed against the said appellate order of dismissal.

2. The principal grounds of attack set out in the revision petition are: (1) the view of the lower appellate Court that the circumstances of the case do not disclose an injury within the meaning of Rule 2 of Order 39 of the Civil Procedure Code is wrong; (2) that even otherwise the courts below should have held that they have inherent power to issue injunction apart from Order XXXIX Rules 1 and2 of the Civil Procedure Code and (3) that in any event there were substantial questions for investigation in the suit and the courts below have not exercised their discretion properly in refusing the injunction asked for.

3. In the arguments before me the contention that the courts have inherent jurisdiction to issue injunctions apart from the provisions of the Code of Civil Procedure has been abandoned. The learned counsel has confined his arguments to substantiate the contention that the petitioners have made out the existence of such an injury as is contemplated under Rule 2 of Order 39 justifying the issue of a temporary injunction pending the disposal of the suit claiming a permanent injunction.

He has also contended that on the erroneous view that the principles of law prevented them from issuing an injunction in this case, the courts below have not at all exercised their discretion vested in them regarding the question whether or not such an injunction should Issue. The learned counsel for the respondents while controverting the suggestion that the case would fall under Rule 2 of Order XXXIX of the Code of Civil Procedure has further contended that the trial court in any event has considered the question in the case and has exercised its discretion against the petitioners.

4. To understand the respective contentions of the parties it is necessary to state a few facts. Since, however, the principal question in controversy between the parties, viz., the validity or otherwise of the order of eviction against the petitioners has yet to be decided in the suit filed by the petitioners, and it is undesirable to settle or pronounce upon the facts in dispute at this interlocutory stage, I am confining my attention only to such facts as are admitted by the parties or found by the courts or clearly appear from the undisputed records.

The 2nd respondent, as the power of attorney agent of the 1st respondent, filed H.R.C.O.P, 191 of 1954 on the file of the Court of the RentController, Mangalore, against the petitioners before me who are mother and son, under the provisions of the Madras Buildings, Lease and Rent Control Act, for eviction.

The allegations in the petition are that the 2nd petitioner before me had taken on oral lease a compound containing one big house and a small hut (T. S. No. 535 situated in Mangalore Thota village R. S. No. 225) belonging to the family of Subba Rai, the 1st Respondent before me, on a monthly rental of Rs. 8/-.

The eviction was sought on two grounds, viz. that the tenant has committed default in payment of rent and that Subba Rai bona fide required the house for residence and medical treatment. The mother was impleaded on the allegation that the son has claimed in his reply notice that she was the tenant in possession, which is described as palpably false in the petition for eviction.

The defence was not only a denial of the truth of the allegations made in support of the claim for eviction but also the assertion that the entire, compound measuring nearly an acre had originally been demised by the previous Ejamanthi of the family of Subba Rai on a term lease deed dated l3-9-1922 in favour of Doomappa, the deceased husband of the 1st petitioner before me, that the big house bearing No. 22-4 did not belong to the family of Subba Rai but had actually been built by Doomappa, that Doomappa by a deed of settlement had settled upon his wife, the 1st petitioner before me, his interest in the term lease, that the rental due under the term lease was Rs. 101/- per year reduced from the original rent of Rs. 119/- by subsequent agreement between the parties, that there were as many as nine door numbers in the compound, that though the lease expired in September 1946, the 1st petitioner before me has been holding over OH the strength of that lease, that all rents due up to date of the eviction petition had been paid and that under the terms of the lease the lessee was entitled to payment of value of improvements before eviction.

The Controller dismissed the petition. He found that there had been no default in payment of rent. While holding that Subba Rai was really ill, he rejected the second ground for eviction on the view that he could as well live with his daughter in Mangalore or at any rate in another house in Mangalore belonging to his joint family.

Upon appeal, C.M.A. 11 of 1955, the appellate authority, the Principal Subordinate Judge of South Kanara. agreed with the Controller's finding regarding default in payment of rent. He, however, disagreed with the view that the alternative accommodation said to be available to Subba Rai was a sufficient answer to his bona fide need to obtain possession of the house, door No. 22-4.

As the appellate authority took the view that Subba Rai's needs would be met by giving him possession only of the house and a sufficient portion of the compound directly appurtenant to that house, he called for a finding from the Controller regarding the exact extent and boundaries of such appurtenant land, after receipt of which he passed an order of eviction of the petitioners from the house bearing door No. 22-4 and the plot around it demarcated 'by the Rent Controller.

The petitioners before me filed a revision petition against that order of eviction before the District Court of South Kanara. That revision petition was dismissed. The petitioners thereafter filed a further Civil Revision Petition before the High Court of Madras, which upon transfer to this High Court was numbered C. R. P. (M) 41/1956 and wasdismissed by my learned brother Somnath Iyer, J.,on 29-11-1957.

5. In the revision petition disposed of by this Court it was for the first time contended that the entire proceedings were beyond the jurisdiction of the authorities under the Rent Control Act. The argument was on the following lines: The eviction petition claimed possession of only the building bearing No. 22-4 and not the entire compound which was covered by the term lease.

This building was not one built by the lessor but by the lessee. It was not, therefore, a building let out by the landlord under the lease in question and hence not a building within the meaning of the Act, it was not open to the parties to go to the Rent Controller seeking an order of eviction under the Rent Control Act, nor had the Controller any jurisdiction to entertain such a petition and order eviction.

It was further contended that the building having been put up by the lessee, he must be deemed to be the owner thereof, at any rate till the termination of the lease, and that in this case there has been no such termination of the lease. My learned brother did not, however, entertain this contention because it had not been raised in the courts below and the determination of the controversy involved investigation of facts, which it was not open to undertake in a revision petition under Section 115 of the Code of Civil Procedure. My learned brother, however, stated:

'It has to be admitted that if the contention had been raised properly and the necessary evidence in that regard had boon let in, it could not be regarded as one altogether without force.'

6. It was after the dismissal of C. R. P. (M) 41 of 1956 that the petitioners instituted the present suit, O.S. No. 7/1958, before the District Munsiff's Court of Mangalore, formulating the contentions regarding the absence of jurisdiction on the lines set out above and praying for a declaration and injunction in the terms set out in the opening paragraph of this order.

7. There can be no doubt that the suit in this case does claim a perpetual injunction restraining the defendants from executing the order of eviction on the ground that the said order is one made without jurisdiction and hence a nullity. The principles governing the grant of perpetual injunctions are to be found in the Specific Relief Act; but the principles for granting temporary injunctions pending disposal of the suits for perpetual injunctions are stated in then Code of Civil Procedure.

It is well established that during the pendency of such suit, a court will decline to grant a temporary injunction if the plaint and the affidavits filed in support of an application for temporary injunction disclose on the face of them fiat the case is not one justifying the grant of a perpetual injunction. But the converse is not always true. A court will not grant a temporary injunction as a matter of course in every case in which it can be shown that the main suit is a fit one for granting a perpetual injunction.

In addition to such a prima facie case for grant of perpetual injunction, the plaintiff-applicant must also show that unless the defendant is restrained forthwith by a temporary injunction, the plaintiff would suffer irreparable injury or such injury as would render his ultimate success in the suit totally nugatory or infructuous.

The real occasion for the exercise of court's discretion to grant or not to grant a temporary injunction, therefore, arises when the applicant hasmade out prima facie that the act of the defendant sought to be restrained would cause an injury within the meaning of Rule 2 of the Order XXXIX of the Code of Civil Procedure, and the exercise of such discretion is to be based on the court's view whether the injury is of the nature described above.

8. This leads me to the consideration of the first question, viz., whether the petitioners have made out that the execution of the order of eviction by the respondents is an injury. It is conceded by the learned Counsel for the petitioners that the execution of a valid decree or order of a competent Court is not such an injury.

He does not question the correctness of the principles stated by the Bench of the Madras High Court in Subramanian v. Seetharama AIR 1949 Mad 104, and other cases relied upon by the lower appellate court in support of that proposition. His case, however, is that the order sought to be executed by the respondents is not such a valid order passed by a competent court but is one passed without jurisdiction and hence a nullity.

He relies upon Jitlal Singh v. Kamaleswari Prosad, 18 Cal LJ 355, decided by a Bench of the Calcutta High Court. In the judgment of the Bench delivered by Mukherji, J., it is observed that where an order of a revenue court sought to be executed through civil courts is attacked as one made without jurisdiction, it is open to the civil court to examine that contention and decide whether such order is or is not one made without jurisdiction, and further that in such cases the civil courts can issue a temporary injunction under the provisions of Order XXXIX. Rule 2 of the Code of Civil Procedure.

In that case a temporary injunction was held to have been rightly refused by the lower court because the suit itself did not pray for a perpetual injunction and temporary injunctions under Order XXXIX, Rule 2, can be issued only in aid of a Prospective order for a perpetual injunction, In answer to the view of the trial court in this case that the suit itself was not maintainable in view of Section 12(4) of the Rent Control Act which, says that an order of eviction shall be final subject only to the provisions as to appeal and revision contained in the Act itself, the learned Counsel cites a decision of a Bench of the old Mysore High Court reported in Gururajachar v. Rangiah, 52 Mys HCR 455.

In that case it was held by Venkataramana Rao, C.J., that the House Rent Controller under the Mysore House Rent Control Order is a special tribunal created by the statute for a specific purpose, that such a tribunal can act only within the limits conferred upon it by the statute and that if such limits are exceeded by the tribunal, the decision of the tribunal is liable to be challenged by an action in a civil court. He also relies upon a decision of a single Judge of the High Court of Travancore Cochin reported in Chinnakannu Pillai v. Ammalu Amma, AIR 1952 Trav-Co 125.

In that case the High Court issued a writ quashing an order of eviction passed by a Rent Controller and confirmed by the highest revisional authority under the particular statute, on the ground that the tenant in that case was entitled under the customary law to payment of value of improvements and to continue in possession of the land until Payment of such compensation, that there was no provision authorising the Controller to investigate and decide upon the question of improvements or to direct payment of their value and that therefore without this condition precedent being observed the Controller would have no jurisdiction to order eviction.

9. It has to be held that the principles stated in these rulings are sound and well established and I respectfully agree with their statement contained in these rulings. The plaintiffs are, therefore, within their right in approaching the civil court seeking a declaration that the order or orders of the special authorities set up under the Rent Control Act are without jurisdiction.

I also agree that if the plaintiffs succeeded in obtaining such a declaration, the execution of such an invalid order can be said to be an injury within the meaning of Order XXXIX, Rule 2 of the Code of Civil Procedure. The word 'jury' in that Rule means, in my opinion, any invasion or infraction of a legal right giving rise to a right of action at the instance of the party claiming that right.

If the holder of a valid decree of a competent court seeks to execute that decree such an execution cannot certainly give a judgment-debtor an actionable claim. On the contrary, if a person seeks to execute a totally invalid order, the person against whom such execution is sought has the right to say that he shall not be made to suffer the consequences of an invalid order and. therefore, to take action either to prevent such execution or to repair the damage caused by such execution by approaching a competent court for relief.

10. The next question is whether the petitioners before me have made out a prima facie case that they would be entitled to a perpetual injunction at the termination of the suit. It must be observed that neither of the courts below has fully or properly considered this aspect of the matter. The first court held that the suit itself was not maintainable and further that the case would not fall under either Rule 1 or Rule 2 of Order XXXIX of the Code of Civil Procedure.

The appellate court held that circumstances set out in Rule 1 are not available and so far as Rule 2 is concerned, it simply followed the decisions of the Madras and Mysore High Courts reported in AIR 1949 Mad 104, and Thimmayya v. Sadasivappa, AIR 1952 Mys 76. Both the Courts assumed that the respondents have a valid order of eviction passed in their favour confirmed by the highest authority in the land.

The lower appellate Court also observes that the question of the want of jurisdiction was held against the petitioners by this High Court in C. R. P (M) 41 of 1956. This observation is not correct. This High Court only refused to entertain the question for the first time in revision because it called for investigation into facts.

It did not actually decide that the contention of absence of jurisdiction is entirely untenable. On the contrary, as already stated, my learned brother Somnath Iyer J. actually observed that if the contention had been properly raised and necessary evidence let in it could not be regarded as one altogether without force. The sheet-anchor of the petitioner's case is that eviction is sought only in respect of a house which was built not by the landlord but by the lessee himself which, according to them, was not a building within the meaning of the Act.

The learned counsel for the petitioners contends that once this fact is made out, he can certainly contend that the authorities under the Rent Control Act would have no jurisdiction to proceed with the matter. It is, however, not correct to say that there has been such a finding at any stage of the proceedings under the Rent Control Act. The Controller says nothing on the point.

The appellate authority, the Subordinate Judge, no doubt, observes in the course of his order that there does not appear to be any serious disputesthat one big house comprised in these houses of which possession is being primarily claimed was actually constructed by Doomappa. This is not a clear finding. There is also no clear finding which of the two versions is correct, viz., the landlord's version of an oral lease of this building alone on a monthly rent of Rs. 8/-, or the tenant's version that the lease governing the parties is the term lease of 1922. At the same time there are sufficient indications in the order of the appellate authority, the Subordinate Judge, to show that possession was ordered in respect of only a portion of the leasehold property.

There is then the question of improvements. That value of improvements is payable under the contract is admitted. The only dispute is whether the amount is limited to Rs. 500/-, as the landlord claims, or more is due as the lessee seems to claim. There can be no doubt that the authorities under the Rent Control Act have no jurisdiction to go into the question of improvements, to fix their value or to direct payment of the value fixed by them.

Having regard to all these circumstances I do not think that this is a case in which it can be said that the plaint in the suit and the affidavit in support of the application for temporary injunction show on the face of them that the plaintiffs will not in any circumstances be entitled to a perpetual injunction at the termination of the suit.

The proper view to take would he that the plaintiffs do have a prima facie case. It can also be said that there is a fair and substantial question to be decided between the parties as to whether the order under the Rent Control Act is or is not without jurisdiction. I do not wish to state, nor is it desirable for me to state, anything more in these interlocutory proceedings.

11. There remains the question whether the plaintiffs in addition to a prima facie case have succeeded in establishing that the injury is an irreparable one or is of such a nature as to justify the issue of an injunction against the defendants forthwith. The lower appellate court has not at all considered this question. The trial court has made certain observations in para 6 of its judgment on which the learned counsel for the respondents places great reliance.

On a careful reading of the paragraph it seems to me that the real or substantial consideration operating on the mind of the court is not the one, which, in my opinion, is the proper and relevant consideration, but a mixture of sympathy for Subba Rai, an old man with blood-pressure, a feeling that the plaintiffs are trying to circumvent or flout a court's order and an opinion that there ought to be some finality to civil litigation.

Considerations such as these ought not, in my opinion, to weigh with a court. Cases are not to be decided on mere considerations of human sympathy. Although where equities of a situation are matters for investigation, a court is not entirely precluded from taking into account what may be called human considerations. Such considerations cannot be permitted to outweigh clear rights which law confers on a party.

Attacks against jurisdiction of courts or against validity of a legislation are, no doubt, to be scrutinised carefully. But, if a party docs in fact make out a case of lack of jurisdiction of a court or invalidity of a legislation, he cannot be refused an order in his favour because the consequences of such an order may lead to inconvenience and even confusion.

12. The result is that the Courts below on a wrong view as to the maintainability of the suitand as to the question whether there is in this case injury within the meaning of Order XXXIX, Rule 2 have failed to exercise the discretion vested in them by law in the matter of granting temporary injunction of the nature sought in this case; they have been carried away by the fact that the order of eviction, impugned as invalid by the petitioners is a valid one confirmed by the highest court in land.

The only question now before me is whether sitting in revision I should take upon myself the function of the trial Court and try to exercise the discretion which it should have exercised in the circumstances of the case. It has, no doubt, been contended on the strength of a decision of a Bench of the Patna High Court reported in Firm Ram Kishun Shah v. Jamuna Prasad : AIR1951Pat469 , that as the lower Courts have failed to exercise their discretion, this Court should interfere.

But, that was a case in which the courts without finding whether a prima facie case existed dismissed the application for temporary injunction. In this case, however, the courts have, whether rightly or wrongly, come to the conclusion that the plaintiffs did not even have a prima facie case.

I have, no doubt disagreed with them on this finding. Having done that, I think the proper thing to do is to remit the case to the trial Court so that it may on the basis of my finding consider the remaining question whether the circumstances of the case are such as to lead to an irreparable injury to the plaintiffs if the defendants are not restrained forthwith from executing the order of eviction in their favour.

13. In the interests of justice, however, I consider it necessary that until the trial court disposes of the application the status quo should be maintained by granting a temporary injunction restraining the defendants from executing the eviction order till the final disposal of the application by the trial court.

14. I, therefore, set aside the orders of the courts below and remand R.I.A. No. 14 of 1958 to the Court of the District Munsiff of Mangalore with a direction to readmit it to its file with its original number and to proceed to deal with it in the light of the observations contained in this order and in accordance with law. Till the disposal of the application by the trial Court, the defendants, i.e., the respondents before me, will be restrained from executing the order of eviction made in C.M.A. No. 11 of 1955 on the file of the Principal Subordinate Judge's Court of South Kanara.

15. There will be no order as to costs in this Revision Petition.

16. Case remanded.


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