Allahabad High Court
Mushir Khan Alias Masshan vs Xiith Addl. District Judge, Moradabad ... on 9 July, 1999
Equivalent citations: 1999(4)AWC2900
Author: J.C. Gupta
Bench: J.C. Gupta
JUDGMENT J.C. Gupta, J.
1. Heard Sri K. K. Arora learned counsel for the petitioner and Sri M. S. Haq for the contesting-respondents.
2. By means of this writ petition a prayer has been made to quash the order dated 12.2.90 passed by respondent No. 1 in revision filed against the order of the trial court dated 30.5.88.
3. Since counter-affidavit has been filed, in the peculiar circumstances of the case this writ petition is disposed of finally at the admtsslon stage itself.
4. The facts in brief are that the deceased respondent No. 3 filed suit for rent and ejectment against the petitioner and respondent No. 2 claiming that rent was due from 23.9.1983 which was not paid despite service of notice of demand and termination of tenancy. The petitioner is defendant No. 2 in the said suit and his defence was that there was no relationship of landlord and tenant between him and the plaintiff. According to his case, the owners of the disputed house were Mohd. Naseem and others and in one part of the property, the defendant No. 2 was the tenant. Mohd. Naseem filed Suit No. 137 of 1982 with the allegation that the entire property was under the tenancy of Hidayatullah which was decided in terms of compromise on 31.1.85 and in pursuance of the said decree Hidayatultah handed over possession of his share to Mohd. Naseem. It was further alleged that on 31.1.85 Mohd. Naseem and others executed an agreement to sale in favour of Smt. Khatoon Begum wife of the defendant-petitioner and also handed over vacant possession to her. In short, the case of the defendant-petitioner is that he is in possession of the property in question not as a tenant but in pursuance of the agreement to sale. A plea was also taken that the suit was barred by Section 23 of the Provincial Small Cause Courts Act. A preliminary issue was framed whether the court of Small Causes has no jurisdiction to try the suit. The trial court by the order dated 30.5.88 decided the said issue against the plaintiff and ordered the suit to be returned for presentation before proper court. Aggrieved by the said order, respondent-landlord filed revision which has been allowed by the impugned order and case has been sent back to the trial court for deciding the same in accordance with law. Aggrieved, this writ petition has been filed.
5. During the pendency of this writ petition, respondent No. 2 expired and, therefore, substitution application was moved by the petitioner to bring on record his legal representatives which application was allowed by this Court by the order dated 22.8.95 vide order passed on the substitution application. Respondent No. 3 also expired during pendency of writ petition and his legal representatives have also been brought on record and they are represented by Sri M. S. Haq.
6. Sri K. K. Arora learned counsel for the petitioner argued before the Court that once trial court had exercised discretion in ordering return of plaint for presentation before the proper court, The revisional court was not justified in reversing the said order. After examination of record, this Court finds no substance in the submission of the learned counsel for the petitioner.
7. There can be no dispute that on Small Cause side only suit for rent and ejectment by a lessor against lessee after determination of lease is maintainable and all other suits for recovery of possession based on title are cognizable on regular side. Section 23 makes it clear that in order to attract the same, the Court in which the suit has been filed, if comes to the conclusion that the relief claimed by the plaintiff in the suit depends upon proof or disproof of title to the Immovable property involved in the suit, which such court cannot finally determine, it may at any stage of the proceedings return the plaint to be presented before an appropriate court having jurisdiction to determine the title because the proceedings before the Small Cause Court are of summary in nature and for determining the question of title an elaborate enquiry is required which can only be held by a competent court having jurisdiction to determine the said question. Therefore, it would follow that where the question of granting relief of ejectment in favour of the plaintiff against the defendant depends upon the existence of proof of relationship of landlord and tenant and not on the proof or disproof of title to the property in dispute, the plaint should not be returned under Section 23 of the Small Cause Courts Act. It is also well-settled law that it would not be correct to say that the Court of Small Causes has no jurisdiction at all to go into the question of title even incidentally for determining the real issue before it. For this legal proposition, reference may be made to the decisions in Rakesh Kumar v. Vlth Additional District Judge, Bidandshahr and others, 1998 12) ARC 178 and Shivnath v. Additional District Judge, Maharajganj and others, 1999 (1) ARC 264.
8. In the backdrops of the above legal position, if we examine the facts of the present case, it would be seen that the plaintiff has based the suit with the allegations that there existed a relationship of landlord and tenant between the parties and on account of non-payment of arrears of rent, tenancy was determined under Section 106 of the Transfer of Property Act by a notice of determination. It is true that as per the petitioner's case, no such relationship existed between the parties but this mere denial will not enough to throw the plaintiff out of the Court of J.S.C.C. The relief claimed by the plaintiff in the plaint depends upon the existence of proof of relationship of landlord and tenant and if he fails to prove the same, he may incur the liability of the dismissal of suit. The defendant-petitioner has set up title of the property in question in a third person from whom he is said to have got executed an agreement to sale in favour of his wife. While examining the question of existence of relationship of landlord and tenant between the parties, it was open for the trial court to go into the question of the title as set up in defence incidentally. Without having evidence of the parties on record, no such order in the present case should have been passed by the trial court merely On the basis of the pleadings of the parties. Since Section 23 of the Act permits return of the plaint at any stage of the proceedings, it will always be open for the Court concerned to exercise powers under Section 23 of the Act if ft finds that the question of title on the basis of the evidence adduced cannot be answered in a summary way and an elaborate enquiry is required for determining the question of title, which can only be held by a competent court having jurisdiction to determine the same. The revisional court, therefore. In my view, has committed no manifest error of law it setting aside the order of the trial court.
9. For the foregoing reasons, this writ petition is dismissed with no order as to costs. Stay order granted earlier stands vacated and the trial court is directed to proceed with the suit expeditiously and make every endeavour to decide the same preferably within a period of four months.