IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE ARAVIND KUMAR C.R.P.NO.474/2013

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 12 TH 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 REPRESENTED BY SPECIAL POWER OF ATTORNEY HOLDER KRISHNAMURTHY AGED ABOUT 62 YEARS R/A NO.714, 3RD STAGE 3RD BLOCK, 8TH MAIN, BASAVESHWARANAGAR BANGALORE PETITIONER (BY SRI.S.V.BHAT, ADVOCATE FOR SRI.BASAVARAJ R.BANNUR, ADVOCATE) AND: DAYANAND S/O T.GIRIYAPPA

2 2 AGED ABOUT 49 YEARS R/A NO.42, 16TH CROSS, 8TH MAIN RAOD, MALLESHWARAM, BANGALORE 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 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 in Miscellaneous Petition 130/2013 whereunder application filed by defendant/respondent under Order VII Rule 11(b) and

3 3 (d) of C.P.C seeking rejection of petition filed under Order XX Rule 12 of C.P.C has been allowed and petition has been rejected for want of Pecuniary jurisdiction under Small Causes Courts Act has been called in question. 2. I have heard the arguments of learned advocates appearing for the parties namely Sriyuths Sri.S.V.Bhat, learned counsel appearing for revision petitioner/plaintiff and Sri.Sukumaran, learned counsel appearing for respondent/defendant. Though, only question of law is involved in this revision petition a brief reference to facts would suffice and parties are referred to as per their rank in trial court. 3. Petitioner filed O.S.6523/2009 for ejectment of defendant from suit schedule property and for mesne profits from till date of handing over vacant possession of suit schedule premises. In view of law laid down by Full Bench of this court in Abdul Wajid Vs A.S.Onkarappa

4 4 reported in ILR 2011 Karnataka 229 same came to be transferred to Small Causes Court and it was renumbered as S.C.2628/2011. Said order of transfer came to be questioned by the petitioner in W.P.35279/2011 unsuccessfully. Order of transfer came to be affirmed on Thereafter parties tendered their evidence and on adjudication of claim on merits court of Small Causes decreed the suit on in part and directed the defendant to quit and hand over vacant possession of premises and ordered for separate enquiry to determine mesne profit till actual possession is delivered. This order came to be affirmed by this court in C.R.P.188/2013. Thereafter petitioner filed a petition under Order XX Rule 12 of C.P.C seeking for determination of mesne profits and said petition came to be numbered as Miscellaneous petition 130/2013. Power of attorney holder of petitioner was examined as PW-1 and 20 documents were got marked as Exhibits P-1 to P-20. When it was at the stage of cross examination of PW-1 respondent/defendant who had filed statement of objections

5 5 denying the claim made by the petitioner filed an application under Order VII Rule 11(b) and (d) seeking for rejection of petition contending interalia that the relief claimed is undervalued and barred by law. Said application came to be contested by petitioner and thereafter after considering the rival contentions trial court allowed the application and rejected the petition filed under Order XX Rule 12 of C.P.C. Reason assigned by the trial court for allowing application and rejection of the petition for determination of future mesne profits was on the ground that claim put forth by petitioner exceeds pecuniary jurisdiction of Small Causes Court and same is barred under Karnataka Small Causes Court Act. Hence, trial court allowed the application and rejected the petition filed for determination of future mesne profits. It is this order which is under challenge before this court. 4. It is the contention of learned counsel appearing for petitioner that trial court committed a serious error in dismissing the miscellaneous petition on the ground that it

6 6 has no pecuniary jurisdiction inasmuch as the amount claimed in miscellaneous petition would not form basis for the said court to clutch the jurisdiction and it is the original claim made in the suit which would form the basis and as such the conclusion arrived at by the trial court that claim made in the petition exceeds its pecuniary jurisdiction is erroneous and liable to be dismissed. He would draw the attention of the court to the value made in the suit which was `72,000/- and court fee was paid accordingly and while decreeing the suit S.C.2628/2011 trial court has not quantified the amount and it has only directed for adjudication or determination of mesne profits as contemplated under Order XX Rule 12 of C.P.C and as such mere mentioning of the amount or quantification of the amount in the petition under Order XX Rule 12 C.P.C would not be the basis for adjudication of claim and amount so claimed in the petition filed under Order XX Rule 12 would not decide the forum of jurisdiction. He would also elaborate his submission by contending that sub-rule (3) of Order XX

7 7 would clearly indicate that it is the court of original jurisdiction to the claim of mesne profits and as such order of trial court is erroneous. In support of his submission he has relied upon the following Judgments: 1. AIR 1927 Bombay 83 Ambadas Harirao Karante Vs Vishnu Govind Boramanikar and others 2. AIR 1929 Bombay 337 Krishnaji Vinayak Belapurkar Vs Motilal Magandas Gujarati 3. AIR 1934 Patna 204 Mt.Urehan Kuer Vs Mt.Kabutri 4. AIR 1937 Rangoon 320 A.K.A.C.T Vs Chidambaram Chettiar Vs A.L.P.R.S Muthia Chettiar 5. AIR (34) 1947 Cal 68 Ganeshi Lal Sharma Vs Smt.Snehalata Dassi, W/o Profulla Krishna Ghosh 6. AIR 1961 M.P. 67 Kalyandas Anantlal Vs Gangabai and others 7. AIR 1969 Raj 304 Mahadeo Vs Hanumanmal and others 8. AIR 2004 H.P.11 Mohan Meakin Ltd., Vs M/s.Internations Trade and anr

8 (4) Kar.L.J 218 Malakajappa Andanappa Hampiholi Vs State Bank of India, (ADB) Navalgund 5. Per contra, Sri.Sukumaran, learned counsel appearing for respondent-defendant would raise an initial objection with regard to maintainability of this very revision petition contending interalia that trial court has exercised its jurisdiction under Order VII Rule 11(b) and as such it is a deemed decree as defined under sub-section(2) of Section 2 of C.P.C and remedy available to aggrieved party is to file an appeal and not revision and as such he contends that revision petition is not maintainable in the present circumstances. Elaborating his submission on merits of the case he would submit that when petitioner himself has quantified the claim amount in the petition filed under Order XX Rule 12 of C.P.C which would prima facie indicate that claim in the said petition exceeds pecuniary jurisdiction of Small Causes Court under Section 8 read with Article 4 of Schedule, trial court was fully justified in allowing the

9 9 application filed for rejection of petition and there is no error committed by trial court calling for interference by this court. He would also further contend that revision cannot be construed as an appeal and there cannot be any reappreciation of facts or evidence when this court is exercising revisional jurisdiction and for this reason also he prays for rejection of the present revision petition. In support of his submission he has relied upon the following Judgments: (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 Having heard the learned advocates appearing for the parties I am of the considered view that following two points would arise for consideration:

10 10 1. Whether the revision petition filed under section 18 of the Karnataka Small Causes Court Act, 1964 is maintainable? OR Whether the petitioner is required to challenge the order dated by filing an appeal since the order of rejection of plaint under Order VII Rule 11(b) is a deemed decree as defined under section 2(2) of C.P.C? 2. Whether there is any jurisdictional error or material irregularity committed by trial court in allowing the application filed by defendant under Order VII Rule 11(b) (d) seeking rejection of petition enabling this court to exercise revisional jurisdiction under section 18 of Karnataka Small Causes Court Act, 1964 and as such calling for interference of said order by this court? 3. What order? 7. In order to appreciate the rival contentions raised as noticed herein above it would be appropriate or necessary to extract relevant provisions which may have bearing on my

11 11 discussion, adjudication and conclusion that would be arrived and as such they are extracted herein below: CODE OF CIVIL PROCEDURE, 1908 Section 2(2): (2) decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [xxx] Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

12 12 Though the term decree is defined as above, there are other instances where an order of civil court passed under Order 21 Rule 58 etc is made appealable. It is time to amend Section 2(2) to bring it in conformity with Order 21 Rule 46H and Rule 103 as well as Rule 58 and Order 7 Rule 11(d), determination of any question under Section 144 CPC. A decree may be partly preliminary and partly final, the same is binding (2008)8 SCC PECUNIARY JURISDICTION: Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction. ORDER XX RULE 12- Decree for possession and mesne profits (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-

13 13 (a) for the possession of the property; [(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits]; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until- (i) the delivery of possession to the decreeholder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decreeholder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or

14 14 mesne profits shall be passed in accordance with the result of such inquiry. (3) Where an Appellate Court directs such an inquiry, it may direct- the court of first instance to make the inquiry, and in every case the Court of first instance may of its own accord, and shall whenever moved to do so by the decree-holder inquire and pass the final decree. 1964: KARNATAKA SMALL CAUSES COURTS ACT, Section 18 Revision of decrees and orders of Courts of Small Causes The High Court, for the purpose of satisfying itself, that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such orders with respect thereto, as it thinks fit. 8. There cannot be any dispute with regard to the proposition that rejection of plaint shall be deemed to be a decree as defined under sub-section(2) of Section 2 of C.P.C.

15 15 A perusal of section 6 would clearly indicate as to pecuniary jurisdiction of the court which can exercise its power and it would also indicate that there is saving insofar as said section is concerned. By virtue of saving clause provided under section 6 jurisdiction of a Small Causes Court is governed by Karnataka Small Causes Court Act, Section 18 of Small Causes Courts Act provides for exercise of revisional jurisdiction by trial court and it reads as under: Section 18 Revision of decrees and orders of Courts of Small Causes The High Court, for the purpose of satisfying itself, that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such orders with respect thereto, as it thinks fit. 9. In order to satisfy as to whether a decree or order made in any case decided by a court of small causes, High court exercising revisional jurisdiction can call for records, examine the correctness or otherwise of such decree or order and pass orders thereon as it deems fit. In view of express

16 16 provision of section 18 it cannot be gain said that revisional jurisdiction of this court is ousted and aggrieved party will have to take recourse to filing of an appeal as provided under C.P.C. Infact the power vested to this court under section 18 for exercising revisional jurisdiction is much wider than section 115 of C.P.C. Scope and power of revisional jurisdiction under section 18 was the subject matter of consideration by Co-ordinate Bench of this court in the case of M/s.Savitha Theatre, Bangalore and anr Vs Union of India reported in 1998(5) KLJ 308 and it has been held to the following effect: Where Small Causes Court has placed burden of proof on wrong party, admitted evidence which is inadmissible, failed to examine material witnesses and refused to draw legal presumption which ought to have been drawn, its finding is to be held as not in accordance with law - Revisional Court is entitled to rectify legal error. It has been held as follows:

17 17 7. I have applied my mind to the contentions of the learned Counsels for the parties. The Karnataka Small Causes Courts Act, 1964 as per its Section 18 provides for revision from the order of Judge Small Causes Court to this Court. Section 18 of the Small Causes Court Act reads as under.- "Section 18. Revision from decrees and order of Small Causes Court.--The High Court for the purposes of satisfying itself that the decree and order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such orders in respect of that as it thinks fit". A reading of this section per se reveals that jurisdiction of this Court under Section 18 of the Karnataka Small Causes Court Act is not so limited as jurisdiction of this Court under Section 115 of Code of Civil Procedure. Under Section 115 of Code jurisdiction of this Court is confined to jurisdictional error namely usurpation of jurisdiction not vested, illegal refusal to exercise the jurisdiction vested or where the Court is shown to have acted illegally and with material irregularity in exercise of its jurisdiction, that is confined to jurisdictional error.

18 18 The same is not the scope of Section 18 of the Karnataka Small Causes Courts Act. It is wider. The Court has to examine whether the overall decision given by the Small Causes Court is according to law, that it does not suffer from error of law and that error of law whether it has affected the decision of the case on merits. If it has committed error of law or breach of law, then if the decision has the effect in resulting in an erroneous finding and miscarriage of justice then this Court may interfere. The expression "according to law" has been the subjectmatter of consideration in many decisions and finally in the case of Hari Shankar and Others v Rao Girdhari Lal Chowdhury, their Lordships of the Supreme Court observed as under.- "The phrase "according to law" refers to the decision as a whole, and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a

19 19 power on the High Court to pass such order as the High Court may think fit,--is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is "according to law". It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal". Their Lordships made a reference to Section 25 of the provisions of the Provincial Small Causes Courts Act which is pari materia to Section 18 and their Lordships observed.- "The section we are dealing with is almost the same as Section 25 of the Provincial Small Causes Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would made a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which

20 20 the observations were probably made under compulsions of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell and Company Limited v Waman Hemaraj, where the learned Chief Justice, dealing with Section 25 of the Provincial Small Causes Courts Act, observed: 'The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had

21 21 a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at'. This observation has our full concurrence". 10. The words according to law found in section 18 of Small Causes Court Act would clearly indicate a decision that would be arrived at by the court of Small causes as a whole and as such it cannot be equated to an error of law or fact simplicitor. It refers to overall decision rendered by court of Small causes and it is in this background the revisional court would exercise its jurisdiction to ascertain as to whether the decision so rendered is in accordance with law. It is true that this court exercising revisional jurisdiction would not reappreciate the evidence inasmuch as it is not a court of appeal and finding of fact would not be interfered with. However, under the said guise if the order in question if

22 22 suffering from jurisdictional error or when there has been material irregularity or when there has been non appreciation of material evidence available on record it cannot be construed as reappreciation of evidence inasmuch as decision rendered by court below would not be in accordance with law. As such this court s power to exercise revisional jurisdiction would not be taken away or would not be whittled down under the said assumption. Infact Co-ordinate Bench of this court in R.K.Shivananda Vs Bellulli Shivashankarappa alias Gurusiddappa reported in 1999(3) KLJ 699 has held as under: 8. I have applied ray mind to the contentions raised by the learned Counsel for the parties. The scope of jurisdiction of this Court under Section 18 is limited to the question whether the decision is according to law. The expression 'according to law' has been interpreted in the case of Harishankar, supra, with reference to Section 35 of Delhi-Ajmer Rent Control Act, 1952 and with reference to Section 25 of Provincial Small Cause Courts Act. The revisional power under Section 25 of Provincial

23 23 Small Cause Courts Act and language of that section is pari materia to that of Section 18 of the Karnataka Small Causes Courts Act. What is the meaning of expression 'according to law' their Lordships of the Supreme Court observed in paragraphs 8 and 9 as under: "(8) The phrase 'according to law' refers to the decision as a whole and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited. But it must not be overlooked that the section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit, -- is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is 'according to law'. It stands to reason that if it was considered necessary that there should be a rehearing, a right of appeal would be a more appropriate remedy, but the Act says that there is to be no further appeal.

24 24 (9) The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell and Company Limited v Woman Hemraj, where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: "The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I

25 25 certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at". This observation has our full concurrence". 11. In the background of dicta laid down when the facts on hand are examined it would clearly indicate that petitioner had filed a miscellaneous petition under Order XX

26 26 Rule 12 of C.P.C to execute a preliminary decree passed in S.C.2628/2011 and in the said proceeding an application under Order VII Rule 11 (b) and (d) came to be filed which has been allowed by court below has been called in question invoking section 18 of Karnataka Small Causes Court Act, 1964 and section 115 of C.P.C. Though section 115 of C.P.C would be inapplicable as rightly pointed out by Sri.Sukumaran, learned counsel for defendant, I am of the view that invoking section 18 of Small Causes Court Act is just and proper and it cannot be construed or held that present petitioner ought to have filed an appeal as it is a deemed decree or in other words the petitioner ought not to have filed revision petition in view of section 18 expressly providing for exercise of revisional jurisdiction by this court against the decree or order passed by court of small causes. Hence, I am of the considered view this court is competent and having jurisdiction to entertain a revision petition filed under section 18 of Small Causes Courts Act and accordingly Point No.1 is answered in the affirmative.

27 27 RE: POINT NO.2: 12. Though application was filed by respondent under Order VII Rule 11 (b) and (d) trial court had allowed the same only under Rule (d) and has rejected the application filed under Order VII Rule 11(b) and same is not challenged and it goes without saying that same has reached finality. 13. Insofar as allowing of application under Order VII Rule 11(d) is concerned this court and Apex Court has consistently held while examining an application filed for rejecting a plaint under Order VII Rule 11(d), only averments made in the plaint is required to be seen and no amount of averments made in the objection statement or evidence tendered by parties can be considered and it is the averments made in the plaint alone that has to be taken into consideration and nothing else. In this regard Judgment of Hon ble Apex Court in the case of Kamala and others Vs K.T.Eshwara Sa and others reported in AIR 2008 SC 3174

28 28 and Hardesh Ores Pvt. Ltd., Vs M/s.Hede and Co. reported in (2007)5 SCC 614 can be looked up. 14. In the instant case plaintiff in order to enjoy the fruits of decree passed in S.C.2628/2011 filed a petition under Order XX Rule 12 of C.P.C. Though amount has been quantified in the said petition what is required to be examined, looked into by the trial court i.e., Court of Small Causes is preliminary decree which has been passed by the competent jurisdictional court, i.e., court of small causes in S.C.2628/2011. Decree passed by said competent court reads as under: Suit is partly decreed. Defendant is directed to quit, vacate and handover the vacant possession of the suit property within two months from the date of decree. There shall be a separate enquiry to determine the mesne profits from the date of suit till actual possession is delivered.

29 29 Parties are directed to bear their own costs. Draw decree accordingly. Sd/- Judge 15. This would clearly indicate that there was no quantification of amount payable by defendant to plaintiff under the said decree. Jurisdiction of court is determined on the basis of valuation made in the plaint and there can be no subtraction or addition to the said fact. In the instant case valuation made in the original plaint would indicate that suit was valued for the purposes of jurisdiction by determining one year rent i.e., `72,000/- and court fee of `4,650+`25=`4,675/- had been paid. It would be appropriate to note at this juncture that suit in question was initially filed in the City Civil Court having original jurisdiction. A petition by way of interlocutory application was filed by defendant contending interalia that said court did not have pecuniary

30 30 jurisdiction and it was the court of small causes. By virtue of law laid down by Full Bench of this court in Abdul Wajid Vs A.S.Onkarappa reported in ILR 2011 Karnataka 229 referred to supra trial court had upheld the said contention raised by defendant and directed return of plaint and transferred the suit to the Chief Judge, Court of Small Causes, Bangalore on the ground that it had no pecuniary jurisdiction to try the suit. In other words it accepted the contention of defendant by referring to the valuation made in the plaint which was undisputedly `72,000/- vide order dated 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 It is thereafter trial court has adjudicated the claim on merits and by its judgment and decree dated 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 When the matter rested at that, petitioner

31 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 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 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 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 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 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 subjectmatter 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 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 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 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 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 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 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 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 is hereby set aside.

42 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 without waiting for copy of this order. SBN Sd/- JUDGE