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Mahammad Iqbal Dastagirsab and ors. Vs. Mohamadgous Lalamiya Sangolli and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 302 of 1979
Judge
Reported inAIR1982Kant35; ILR1981KAR1612; 1981(2)KarLJ395
ActsKarnataka Rent Control Act, 1961 - Sections 21 (1) 43 (3) and 29 (4); Code of Civil Procedure (CPC), 1908 - 0rder 14, Rule 2
AppellantMahammad Iqbal Dastagirsab and ors.
RespondentMohamadgous Lalamiya Sangolli and ors.
Appellant AdvocateN.A. Mandagi, Adv.
Respondent AdvocateR.U. Goulay, Adv.
Excerpt:
.....and directing him to hear the question regarding the existence of relationshi,3 between the parties as landlord and tenant, as a preliminary issue. it is well established that it is the duty of the tribunal itself to decide whether the jurisdictional fact exists, subject no doubt to correction by the high court in the event of its committing an error in deciding that question. when the tenant failed to make the deposit, the court also proceeded to make an order stopping further proceedings and directed the tenant to give posssion. seshagiri rao held that before granting interim relief, the court must be satisfied, prima facie not only that the essential supply or service has been cut off without sufficient cause, but also that the applicant is a tenant as defined under the act. on..........the issue regarding the status as landlord and tenant between the parties is essentially an issue of fact and evidence is required to be adduced to establish the existence of such relationship between the parties. though a decision on that issue. one way or the other, either may give or take away the -jurisdiction of the court, yet the fact that that is an issue involving jurisdictional fact is not by itself sufficient for the court to try such issue as a preliminary issue inasmuch as an issue requiring evidence is not a preliminary issue, that could be so tried under sub-rule (2) of rule 2 of order 14 c. p. c. it is only purely an issue of law relating to the jurisdiction of the court. or to a bar to the exercise of such jurisdiction created by any law for the time being in.....
Judgment:
ORDER

1. This revision filed under S. 115 of the Civil P. C. is directed against the order dated 27-10-1978 passed by the II Additional District Judge, Belgaum, in H. R. C. R. P. No. 46 of 1978, on the file of his Court, whereby in reversal of the order dated 5-7-1978 passed by the I Additional Munsiff, Belgaum, an 1. A. 1. in H. R. C. No. 258 of 1977, he has directed the Munsiff, to hear and decide the question relating to the relationship of the parties as landlord and tenant as a preliminary issue and, then to hear the parties on the merits of the case.

2. The question of law that arises for decision in this revision Is. whether in a proceeding for eviction instituted under the Karnataka Rent Control Act, where the respondent disputes the existence of relationship as landlord and tenant between the applicant and the respondent, it is necessary to decide the Issue regarding the existence of such relationship as landlord and tenant as a preliminary issue.

3. The question arises in, this way. The four petitioners who are related among themselves as full brothers made an application under S. 21(1)(h) of the Karnataka Rent Control Act, hereinafter referred to as the Act, for possession of the Premises in occupation of the respondents alleging, inter alia, that they were owners and landlords of the premises and the respondents were their tenants and they required the premises in question reasonably and bona fide for their personal use and occupation. The respondents though admitted, they were tenants in possession of the premises denied either that the petitioners were the owners or there existed such a relationship as landlords and tenants between the petitioners and the respondents. They also denied even that the petitioners required the premises reasonably and bona fide for their Personal use and occupation.

4. When the case was set down for enquiry, respondent-1 made I. A. I. to frame an issue to the effect whether the petitioners prove that respondent No. 1 is their tenant of the petition premises and requested to decide the said issue as a preliminary issue before proceeding to record the evidence in the case. The petitioners opposed the application on the ground that there was no necessity to frame such an issue and decide it as preliminary issue and that Ole same could be tried along with the other issues arising in the case to avoid multiplicity of proceedings.

5. After hearing the counsel appearing for the Parties, the learned Munsiff being of the view that unless the statute vested the power to decide the existence of such relationship as landlord and tenant between the parties in any other authority, the Court having jurisdiction under the Act could decide the issue along with the other issues in the absence of any Provision in the Act to raise and decide such issue as a Preliminary issue and, accordingly, he directed that the issue as sought for be raised and heard along with the merits of the case being aggrieved by the said order when the lst respondent approached the District Judge in revision under S. 50 of the Act, the learned District Judge taking into consideration the provisions contained in 0. 14, R. 2 of the Civil P. C. and being of the view that the issue necessarily involved jurisdictional factor and, therefore it had to be decided as a preliminary issue, directed to decide the issue touching the relationship as a preliminary issue.

6. The contention of Mr. N. A. Mandagi, learned counsel appearing for the Petitioners. is: even though in a proceeding instituted under the Karnataka Rent Control Act, 1961 where the existence of relationship between the parties as landlord and tenant is disputed and the question relating to such relationship between the parties involves a jurisdictional fact. On the finding of which alone the Rent Court will have jurisdiction to decide the dispute between the parties, yet in the absence of any provision made in the Act requiring the 'Court to hear the question as a Preliminary issue, the Munsiff was perfectly justified not to hear it as Preliminary issue and leaving it to be decided along with other issues involved in the dispute between the Parties and the District Judge, had committed a material error and irregularity in setting aside the order passed by the Munsiff and directing him to hear the question regarding the existence of relationshi,3 between the Parties as landlord and tenant, as a preliminary issue. Mr. R. U. Goulay, learned counsel appearing for the respondents, on the other hand, relying upon the provisions contained in 0. 14. R. 2 C. P. C. supported the view taken by the learned District Judge.

7. There is no doubt and it cannot also be disputed that the Munsiff functioning under the Act is not an ordinary Civil Court of general jurisdiction, but a tribunal of limited jurisdiction, and he exercises limited jurisdiction for the purpose of the Act under which he functions and existence' of such relationship as landlord and tenant between the parties is a pre-requisite condition and where the applicant comes asserting the existence of such relationship and the respondent disputes the existence of such relationship, then the Munsiff has to decide that jurisdictional fact, in the absence of which he will have no jurisdiction to decide the dispute arising under ,the Act. While the averment made in the application regarding the existence Of such relationship as landlord and tenant between the Parties is ordinarily sufficient for the Court to entertain the application made under the provisions of the Act, but where the existence of such relationship is disputed by the respondent, it becomes necessary to decide the existence of such relationship as a jurisdictional fact. This is also the view taken by this Court in the case of Venkataram v. Seshagiri Rao, ( (1965) 1 Mys LJ 560). That was a case arising under S. 21 of the Mysore House Rent Control Act, 1951, where the respondents claiming to be the landlord of the petitioner brought an action for eviction and the existence Of such relationship as landlord and tenant between the parties was disputed. During the pendency of the proceedings an application was made for a direction being issued to the tenant to deposit rents in, the Court and the Court, accordingly, passed an order directing the tenant to deposit certain sum as rent. The tenant without depositing the sum made an application for granting time to make the deposit. That application was dismissed. When the tenant approached the High Court in revision, it was contended that the tenant-had disputed the status claimed by the respondents as landlords and without deciding that dispute the Court below had committed a material error in proceeding with the matter, inasmuch as that amounted to the Court proceeding with the case without jurisdiction. Narayana Pai, J., as he then was, upheld the contention and observed:

'There is not and cannot be any dispute before me that the Munsiff functioning under the Mysore House Rent and Accommodation Control Act is not an ordinary Civil Court of general jurisdiction, but a tribunal of limited jurisdiction. the scope of which is defined by the special Act under which he functions. The principal purpose of that Act is briefly to control the relationship between landlords and tenants in respect of buildings, hotels and lodging houses. Unless the subject-matter of the proceeding is a dispute relating to a lease of a building, hotel or lodging house and unless the Parties to the proceeding are landlord and tenant in respect of such building, hotel or lodging house the tribunals and authorities functioning under the statute would have no jurisdiction to exercise any of the powers conferred on them by that statute. In other words the existence of such relationship of landlord and tenant in respect of a house, hotel or lodging house is a jurisdictional fact, in the absence of which the Munsiff would have no jurisdiction to function under the statute. When the existence of that jurisdictional fact is questioned unless the statute vests in some other authority the Power to decide upon the existence or otherwise of that jurisdictional fact. it is well established that it is the duty of the tribunal itself to decide whether the jurisdictional fact exists, subject no doubt to correction by the High Court in the event of its committing an error in deciding that question.'

That is a leading case so far as this Court is concerned and has been followed subsequently in various decisions of this Court. In the case of Y. N. Narayana Rai v. A. C. Appaji Rao, ( (1971) 2 Mys LJ 370) where an application for eviction was made on several grounds under the Act. the respondent-tenant took the contention that the - property which is the subject-matter of the lease was an agricultural holding and not a premises as defined under the Act and the proceedings initiated for eviction under the Act and the provisions of the Act are not maintainable. The tenant requested the Court to raise preliminary issue to that effect and the Court took the view, as in the case on hand, that it would be inappropriate to decide the matter tentatively as the Act also did not envisage Preliminary hearing on any point. The landlord then applied for an order under S. 29 of the Act to direct the tenant to deposit the rents and the Court; accordingly proceeded to make an order directing the tenant to deposit the arrears of rent. When the tenant failed to make the deposit, the Court also proceeded to make an order stopping further proceedings and directed the tenant to give posssion. While challenging the correctness of that order of eviction in the revision before this Court. the correctness of the earlier order made by the Court directing the tenant to deposit the arrears was challenged. Following the decision in Venkataram. v. Seshagiri, Rao, cited supra, this Court held that the Court deciding a case under the Rent Control Act has to decide whether the lease in the case is a lease crf premises as defined under S. 3 (n) of the Act and unless a determination is made, it has no jurisdiction to go further- in the matter. During the course of the judgment in the said case, referring to the decisions in the case of M. B. Tambakad v. B. S.Honkan ((1965) 1 Mys LJ 257) and C.R.P.44 of 1969, D/- 25-2-1971, the following was quoted with approval:-

'S. 21 of the Act provides for obtaining the eviction of a tenant on a petition filed by the landlord against the tenant on any of the grounds specified in the said section. The words landlord' and 'tenant, have been defined in S. 3 (n) and S. 3 (r) respectively. When the respondent in Proceedings taken under S. 21 of the Act contends that he is not the tenant and there is no relationship of landlord and tenant between the parties, the Court has to decide as a jurisdictional fact whether the petitioner is the landlord and the respondent is the tenant as defined under the Act. That power to adjudicate on this question of existence of relationship of the landlord and tenant is incidental to the jurisdiction conferred on the Court under S. 21 of the Act.'

Finally the Court concluded:

'Having regard to these principles laid down in these sections. it is clear that before the Court considers the merits of the case the Court was required to decide the main jurisdictional fact as to whether the proceedings were maintainable on the ground that the subject matter of the lease was not a premises, but was an agricultural holding, the Court has to decide this matter finally by recording evidence in the case and not tentatively.'

In the case of Basavannappa , Kotrappa Hubli v. Shri Krishna Trading Co. M973) 1 Mys I.J 77): (AIR 1973 Mys 129) again while dealing with similar question in a proceeding under S. 43 (3) of the Act, whereon an interim application made in the Proceeding, the Court directed to restore the amenity, namely, the supply of electric Power and light, by an interim order without deciding, whether there existed relationship between the parties as landlord and tenant, which was disputed, this Court again following the decision in Venkataram v. Seshagiri Rao held that before granting interim relief, the Court must be satisfied, prima facie not only that the essential supply or service has been cut off without sufficient cause, but also that the applicant is a tenant as defined under the Act. The- existence of the relationship of landlord and tenant between the Parties is a jurisdictional fact which the Court is bound to decide before deciding the question under S. 43 (3) of the Act. Similar was also the view taken by this Court in the case of Rukamoddia Dastagirsab v. Basawwa, ( (1973) 2 MYS LJ 206): (AIR 1974 Mys 46). Thus the consistent view taken by this Court is that where the respondent in a proceeding instituted under the Act disputes the existence of the relationship as landlord and tenant between the parties, that being a jurisdictional fact the Court should decide it before granting any relief under the, provisions of the Act. In the cases referred to above where the respondent in the proceeding disputed the existence of such relationship between the Parties as landlord and tenant. On the application of the applicant who claimed to be the landlord asking for interim relief like the one under S. 43 M or under S. 29 (4) of the Act, before making any order granting, such relief, it was obligatory on the Court to decide whether there existed such status between the parties as landlord and tenant. But, without deciding it, the Court had proceeded to grant the interim relief. That was not correct, because. it is the existence of that status between the parties as landlord and tenant that alone gives jurisdiction to the Court to make any order. Without deciding that if the Court proceeds to make any order that would be without jurisdiction. In other words, before giving any such relief, the Court has to decide the existence of such relationship as landlord and tenant where it is disputed. This Court emphasised the need of the Court deciding the issue involving the status between the parties as landlord and tenant before proceeding to give further relief and not that such an issue should be set down and tried as a preliminary issue. Therefore, merely because the respondent, during the proceeding, raises a dispute of existence of such relationship between the parties, it is not obligatory on the Court to raise and decide it as a preliminary issue before proceeding to enquire into the application whether it is under S. 21 or under any other provisions of the Act, particularly when no provision to that effect has been made in the Act.

8. Now what 0. 14, R. 2 of the Civil P. C. says is:

'Rule 2 -

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all Issues.

(2) Where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only it may try that issue first if that issue relates to -

(a) the jurisdiction of the Court or

(b) a bar to the suit created by any law for the time being in force,

and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.'

While sub-rule (1) of Rule 2 lays down, notwithstanding that a case may be disposed of on a preliminary issue, the Court shall Pronounce judgment on all issues. sub-rule (2) is attracted only where issues both of law and of fact arise in the same case and the Court is of opinion that the case or any part thereof may be disposed of on an issue Of law. Sub-rule (1) recognises the well established principle of law as laid down by the Supreme Court in the case of S. S. Khanna v. F. J. Dillon : [1964]4SCR409 wherein it is observed as follows (at P. 498):

'Under 0. 14, R. 2 Code of Civil Procedure where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exercised only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issue. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.'

This is also the view taken by this Court in the case of KarguPikar V. Kulkarni (C. R. P. No. 985 of 1974, dated 7-8-1974) wherein it is observed as follows:

'Where evidence is required on an Issue the Court should not direct it to be tried as a preliminary issue.'

9. Undoubtedly the issue regarding the status as landlord and tenant between the parties is essentially an issue of fact and evidence is required to be adduced to establish the existence of such relationship between the parties. Though a decision on that issue. one way or the other, either may give or take away the -jurisdiction of the Court, Yet the fact that that is an issue involving jurisdictional fact is not by itself sufficient for the Court to try such issue as a preliminary issue inasmuch as an issue requiring evidence is not a preliminary issue, that could be so tried under sub-rule (2) of Rule 2 of Order 14 C. P. C. It is only Purely an issue of law relating to the jurisdiction of the Court. or to a bar to the exercise of such jurisdiction created by any law for the time being in force, that is required to be tried first and that too where the Court is of the opinion that the case or any part thereof may be disposed of on such an issue of law of jurisdiction. If a decision on a question of law depends upon a decision of the question of fact, the Court has no power to try such an issue of fact independent of other issues of fact arising in the case between the parties by postponing the trial of the case on such other issues of f act under this rule, though it may be correct to say. While deciding the case the issue of law that depends upon an issue of fact has to be decided first in order of priority. It is one thing to say that the issue of law depending upon the issue of fact should be decided first in order of priority, it is another thing to say that such an issue of law depending upon the issue of fact should be set down and tried as a preliminary issue. That is not the scope and procedure to be followed in deciding such issues of law depending On a question of fact. Therefore, the Court in such proceedings arising under the Rent Control Act. should not try such issue of mixed question' of law and fact as a preliminary issue to avoid lop-sided and piecemeal decision necessitating an order of remand by the revisional Court disagreeing with such decision, which results in protraction of litigation.

10. From the above discussion it follows that the learned Munsiff was right and justified in declining to frame the issue and leave it to be tried along with other issues arising between the parties. The District Judge committed an error in directing him to decide that issue as a preliminary issue.

11. Before concluding it may be pointed out that when a case instituted by the petitioner is being enquired into and the petitioner during the pendency of the proceedings, makes an application or moves the Court to stop further proceedings on the plea of failure on the part of the respondent to pav or deposit the arrears of rent and the Court is called upon to decide that fact, then, while deciding that fact, the Court will be bound to decide first the issue regarding the existence of relationship between the parties as landlord and tenant. The revision is, therefore, allowed. The order passed by the District Judge is set aside. The case is remitted back to the Court of Munsiff, Belgaum with a direction to make enai4irv into the case and dispose of the same in accordance with law. in the light of the observations made above. The costs of the revision will be costs in the case.

12. Revision allowed


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