LAXMINARAYANA RAO Vs. JANARDHANA SHETTIGARA

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree dated 29/02/1992 in R.A. 195 of 1990, on the file of the Prl. Civil Judge at Mangalore, Dakshina Kannada, dismissing the appeal filed by the appellant and confirming the judgment and decree dated 22/10/1990, in O.S. No. 1162 of 1990.

(2.) When this second appeal came up for admission, as it was found that the appeal involved substantial questions of law, by consent of the Advocates appearing for both sides, this second appeal has been treated as admitted and arguments have been heard on the said questions of law.

(3.) The facts, giving rise to this appeal, may briefly be stated, as hereunder: The respondent was a monthly tenant in respect of the suit shop premises and the appellant was the landlord of the said premises. The appellant filed a suit in O.S. 542 of 1988, on the file of the Munsiff, mangalore for recovery of possession of the suit premises from the respondent on the ground that the tenancy had been terminated by issue of notice. In the plaint the plaintiff had stated that as the defendant was likely to raise substantial question in his defence the suit was filed in that Court. The respondent contested that suit and one of the grounds taken by him was that he was entitled to protection under the Karnataka Rent Control Act. That suit was dismissed by the trial Court and the appeal filed by the appellant in R.A. 109/89 was allowed and the appellant's suit for eviction was decreed. It is not disputed that in that suit the Court held that the Karnataka Rent Control Act was not applicable to that case and that the respondent was not entitled to protection under that Act. When the time granted in that decree for the respondent to vacate the premises expired, the respondent filed a suit in O.S. 1162/90, on the file of the Munsiff, Mangalore for a declaration that the judgment and decree passed in O.S. 542/88, on the file of the Munsiff, Mangalore, as well as the judgment and decree in R.A. 109/89 were null and void as the Civil Court had no jurisdiction to try that suit in view of the provisions of Section 9 of the Karnataka Small Cause Courts Act, 1964 (hereinafter referred to as the 'Act'). The respondent also sought for a permanent injunction restraining the appellant from interfering with his possession of the schedule premises. The learned Munsiff has decreed suit and the learned Civil Judge has concurred with the finding of the learned Munsiff and dismissed R.A. 195/90 filed by the appellant. The courts below have held that the suit as brought by the appellant in O.S. 542/88 was cognizable by the Court of Small Causes in view of the averments made in the plaint; that for purpose of finding out whether the suit was congnizable by the Court of Small Causes only the averments in the plaint have to be taken into consideration and not the averments in the written statement and that as such the Civil Court had no jurisdiction to entertain that suit or to pass any decree therein.