Allahabad High Court
Iqbal Ahmad Lari vs Smt. Naghma on 2 December, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- MATTERS UNDER ARTICLE 227 No. - 8339 of 2019 Petitioner :- Iqbal Ahmad Lari Respondent :- Smt. Naghma Counsel for Petitioner :- Rafiuddin Ansari Hon'ble Vivek Agarwal,J.
Heard Sri R.U. Ansari, learned counsel for the petitioner.
This writ petition under Article 227 of the Constitution of India has been filed by the petitioner being aggrieved by the order dated 1.5.2019 passed by the Judge, Small Causes Court, Gorakhpour on the application 543 C in SCC Suit No. 2 of 2016; Smt. Naghma Vs. Iqbal Ahmad Lari being aggrieved by rejection of application filed by the tenant under the provision contained under section 23 of the Provisional Small Causes Courts Act, 1887 (hereinafter referred to as the SCC Act).
It is petitioner?s contention that he had filed a revision being aggrieved by the order dated 1.5.2019 that too has been dismissed by the revisional court vide order dated 2.8.2019 holding that even one of the joint landlords out of several can bring a suit for eviction against the tenant as has been held in the case of Suresh Kohali Vs. Rakesh Jai 2018(2) ARC page 40 SC.
Counsel for the appellant submits that appellant was originally a tenant of Sri Ahsan Ullah and after death of Ahsan Ullah property devolved on Wasiuillha and thereafter he continued to be tenant of Wasiullah. Upon death of Wasiullah, he has been regularly paying rent to the applicant, Naghma wife of Wasiullah, but his contention is that Naghma is not the sole owner. She inherited share to the extent of only 2 Aanas, remaining 14 Aanas belongs to her son and daughter and, therefore, this suit is not maintainable and should have been returned back by the Small Causes Court, under section 23 of the SCC Act.
It is apparent from the orders passed by the authorities below that the case is at the stage of defendant evidence. An issue has been framed by the trial court in regard to maintainability of the suit. Defendant has to lead his own evidence to prove his defence that suit is not maintainable, as applicant, Naghma, is not the sole owner of the suit property in question and to this effect an application was filed which has been dismissed.
This Court is of the opinion that this question can be decided only after adducing the evidence by both the parties concerned.
As far as Section 23 of the SCC Act is concerned, plaint can be returned to be presented to a Court having jurisdiction to determine the title. It is also apparent from sub section (1) of Section 23 that when the right of the plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a tile to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.
In the present case there is no dispute as to title but is only to the extent of share of the plaintiff of the suit property.
The petitioner?s contention is that plaintiff alone cannot terminate its tenancy. This is mixed question of fact and law which can be determined of the Small Causes Court after adducing evidence by rival parties . It is still upon to the Small Causes Court that after parties adduce their evidence, if it comes to the conclusion that there is a dispute as to the title, then the suit application can be returned. Therefore, the judgment relied by the petitioner in case of Akhilesh Singh Vs. Vijay Singh and others reported in 2004(1) ARC 2013 is of any avail to the petitioner unless and until said mixed question of law and fact is determined, after parties adduce their evidence. This writ petition is premature and therefore it is dismissed.
No order as to cost.
Order Date :- 2.12.2019 S.K.S.