Allahabad High Court
Smt. Baqreedan @ Bhopalan vs Additional District Judge Lko.And 2 ... on 7 April, 2015
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- RENT CONTROL No. - 38 of 2008 Petitioner :- Smt. Baqreedan @ Bhopalan Respondent :- Additional District Judge Lko.And 2 Ors. Counsel for Petitioner :- Mohd. Adil Khan, Mohiuddin Khan Counsel for Respondent :- C.S.C., Pankaj Shukla Hon'ble Aditya Nath Mittal,J.
Heard Mohd. Arif Khan, Senior Counsel assisted by Mohiuddin Khan learned counsel for the petitioner; Sri Pankaj Shukla learned counsel for the respondent no. 3 and perused the pleadings of writ petition.
This writ petition has been filed under Article 226 of the Constitution of India with a prayer to issue a writ of certiorari to quash the order dated 06.02.2008 passed by the Additional District Judge, Court no.12 Lucknow by which the judgement of the opposite party no.2 i.e. Judge Small Causes Court, Lucknow has been upheld.
The brief facts of the case are that the opposite party no.3, who is the plaintiff (landlord) in the SCC No.98 of 2004 filed a Suit for rent and ejectment against the defendant / petitioner, who was the tenant of Rs.200/- per month on the ground that he has purchased the said property by way of sale deed dated 18.06.2003. The tenant had not paid the rent to the previous owner also. The information of the sale deed was given to the tenant but still she has not paid the rent and had made some constructions in the property in dispute and has sublet a part of the property to Smt. Farida Bano on a rent of Rs.500/- per month.
The suit was contested by the petitioner on the ground that the plaintiff or the previous owner were not the owners of the property but she is the owner of the property in dispute. It was alleged that the said house belonged to her husband Middoo Khan and after his death, she is residing in the house as her successor. The husband of the petitioner had sold some portion to Farida Bano, who had made some constructions. The plaintiff do not get any right from the sale deed dated 18.06.2003 and the previous owner Sabir Khan and Rashid Khan had no authority to sell the property in dispute. It was also alleged that the petitioner was also the owner on the basis of the adverse possession.
After considering the evidence on record, the learned trial court came to the conclusion that the opposite party no. 3/plaintiff was the owner of the house in dispute through sale deed and the petitioner was not the owner of the house because her husband Middoo Khan was also not the owner of the house. It was also held that she has also not become the owner of the house on the basis of adverse possession. It was also held that Farida Bano was sub-tenant and there were material alterations in the property in dispute by the petitioner. It was also held that the petitioner has not paid the rent. Therefore, she is liable to be evicted. The judgement and order dated 17.08.2007 passed by Judge Small Causes Court Lucknow was challenged in SCC Revision and the SCC Revision was also dismissed by the impugned judgement and order dated 06.02.2008. Being aggrieved against the judgement and order dated 06.02.2008, the present petition has been filed.
Learned counsel for the petitioner has submitted that the learned court below has not considered the entire evidence on record and the intricate question of title was involved. Therefore, the appellate court should have returned the plaint for proper presentation. It has also been submitted that the revisional court has also committed mistake in not allowing the application under Order XLI Rule 27 CPC for admission of additional evidence and had not disposed of the said application. It has also been submitted that the mind of the court below was affected on misleading of the evidence. It has also been submitted that the petitioner has also filed a declaratory suit, therefore, the question of title should have been decided by the Judge Small Causes Court.
Leaned counsel appearing for the opposite party no.3 has submitted that the application under section 23 was rejected by order dated 09.02.2005, against which no revision or petition was filed. Therefore, the said order has become final. It has also been submitted that the petitioner had made self contradictory pleas regarding her ownership, whereby she has alleged that she has got the said house in inheritance after the death of her husband and on the other hand, she has claimed the adverse possession. It has also been submitted that in view of the provision of Order L, the provision of Order XLI Rule 27 CPC are not applicable in the proceedings before the Judge Small Causes Court. It has also been submitted that the court below was not bound to return the plaint for proper presentation and the Judge Small Causes Court was competent to decide the said question.
As regards the provision of Order XLI Rule 27 CPC, the learned counsel for the petitioner has relied upon Jatinder Singh and another minor through mother vs. Mehar Singh and others (2009) 27 LCD 582 as well as Hakam Singh vs. State of Haryana and others (2009) 27 LCD 619. Both these judgements of Hon'ble the Apex Court relate to regular appeals. In view of the provisions of Order L, the provision of Order XLI Rule 27 are not applicable to the proceedings under Provincial Small Causes Court Act. Therefore, the law relied upon by the learned counsel for the petitioner is not applicable to the present set of facts.
Learned counsel for the petitioner has also relied upon Husain Uddin alias Munney Bhai vs. XIIth ADJ, Agra and others reported in ARC [1999 (1) Pg. 424]; Smt. D. Mohapatra vs. Ixth Additional District Judge, Lucknow and others reported in ARC [1999 (2) Pg. 614]; and Chunni Lal and another vs. District Judge Lalitpur and others reported in [2008 (1) ARC 828].
In the aforesaid rulings, it has been held that in the proceedings under Provincial Small Causes Court Act, the provisions of Order XLI Rule 27 CPC cannot be pressed into service but under section 151 CPC, the court in its inherent jurisdiction can admit the documents in revision for doing justice according to law.
It is not disputed that the application under Order XLI rule 27 CPC was moved before the revisional court, which has not been decided by the revisional court. It appears that the petitioner had not pressed its application and had chosen to argue the revision on merits without pressing the application under Order XLI Rule 27 CPC. If any party to the proceedings do not press the pending application, it has to be treated as not pressed and this point cannot be raised before the superior court.
It is the duty of the counsel concerned to press the pending application if any and the liability cannot be shifted to the court because the counsel who has moved any application, has to press the pending application, if he wishes that such application should be decided before final arguments. If without pressing such pending application, the final arguments are done, then it shall be deemed that such counsel do not want to press the said application. Moreover, if the said application has not been pressed before starting final arguments, then such plea cannot be raised before this court that the court was negligent in not deciding the said application. The counsel concerned cannot shift his negligence upon the court and cannot be permitted to take benefit of that before superior court.
As far as the legal position is concerned, it is well settled that the provisions of Order XLI Rule 27 CPC are not applicable in the proceedings under Provincial Small Causes Court Act. Thus, I do not find any substance in the submission of the learned counsel for the petitioner.
Learned counsel for the petitioner has submitted that since intricate question of law was involved in the trial court, therefore, the trial court should have returned the plaint for presentation before the appropriate court. In support of his arguments, learned counsel for the petitioner has relied upon :
1. Harnam Singh vs. District Judge Lalitpur and others reported in [2000 (2) ARC 515];
2. Mahendra Pal Singh and others vs. District Jhansi and another reported in [2004 (1) ARC 697];
3. Dulari (Smt.) and others vs. IVth Additional District Judge, Gorakhpur and others reported in [2003 (2) ARC 701];
4. Sheel Chand and another vs. IInd A.D.J. Jhansi and others reported in [2006 (1) ARC 359];
5. Smt. Sughra Begum vs. Additional District Judge XIIth Lucknow and others reported in [1999 (1) ARC 582];
6. Sarjoo Prasad vs. IInd Additional District Judge, Kanpur and others reported in AIR 1975 Allahabad 13; and
7. Bhagmani Devi (Mst.) vs. VIIIth A.D.J. and another reported in [2011 (3) ARC 161].
It is settled proposition of law that when intricate question of law is involved, the trial court may return the plaint for appropriate presentation. Section 23 of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act 1972 provides as under:
"23-Enforcement of Eviction Order : (1) The prescribed authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order is made under section 21 or on appeal under section 22, as the case may be, or against any other person found in actual occupation, and for putting the landlord into possession.
(2). Every order of the prescribed authority in proceedings under this section shall be final."
It is also settled proposition of law that if the said question arise incidentally, then the Judge Small Causes Court can decide the said question.
In the present case, the application under section 23 was moved by the petitioner and the same was rejected by order dated 09.02.2005. Admittedly, the petitioner has not filed any revision or petition challenging the said order dated 09.02.2005. Therefore, the said order dated 09.02.2005 has attained finality. Therefore, the said question cannot be reopened now.
As the question has arisen incidentally, therefore, the learned court below has considered the evidence of the parties on the point of ownership of the petitioner as well as the ownership of respondent no.3. The respondent no.3 had came with a specific plea that he has purchased the said house by a sale deed dated 18.06.2003 from Sabir Khan and Rashid Khan, who were its previous owners. The petitioner had stated in her written statement that Sabir Khan and Rashid Khan were not the owners of the property in suit. Therefore, they had no right to sell the property.
Both the parties have adduced their oral as well as documentary evidence. The opposite party no.3 had alleged that he has purchased this property by way of registered sale deed and by the evidence of Sabir Khan (PW-2), the said sale deed has been proved. It has also been mentioned in the said sale deed that father of Sabir Khan and Rashid Khan namely Abdul Gaffar had purchased this property by a registered sale deed dated 31.12.1947 and the copy of the sale deed has also been filed. This fact has also been mentioned in the sale deed that the said house belonged to Aamir Khan and after the death of Aamir Khan, his sons Abdul Sattar and Abdul Gaffar became the owner, out of which, Abdul Sattar had sold his share to his real brother Abdul Gaffar. The chain of ownership of the said house has also been proved by submitting the document paper no. GA-19, according to which, Ahmad Khan son of Madari Khan was the owner of this house who had sold this house to Aamir Khan son of Hussain Khan by sale deed dated 14.02.1909.
The petitioner came with the allegation that the said house belonged to her husband Middoo but nothing was explained that how Middoo became the owner of this house. The opposite party no.3 had also filed the copy of the notice dated 29.05.1971, which was given by Abdul Gaffar to Middoo stating that he was the tenant of Rs.10/- per month and the tenancy of Middoo was terminated.
Where any party to the suit claims its ownership, the fact of that ownership must be proved either by the documentary evidence or by the reliable oral evidence. In the present case, there was no documentary evidence in favour of the husband of the petitioner regarding the ownership of the house in dispute. As far as the oral evidence is concerned, the petitioner apart from her own affidavit as DW-1 had filed the affidavit of DW-2 Prasadi ; DW-3 Chhanga Lal; and DW-4 Abdul Faiyaz. The petitioner who had filed her affidavit had stated that the said house was given by Abdul Gaffar in the year 1948 to her husband but at the same time she has also stated that till then, she was not married with Middoo. The learned court below came to the conclusion that it was merely a hearsay evidence, which is not admissible in the evidence.
As far as the evidence of DW-2 Prasadi is concerned, he in the cross examination has denied the said affidavit and has stated that he did not know that how Middoo became the owner of the property in dispute. DW-2 Prasadi has not supported the version of the petitioner. In the same way, DW-3 Chhanga Lal has also stated that he has come for evidence upon the instigation of Bakreedan and he has also not read the said affidavit GA-57/1, which goes to prove that the said affidavit was also not reliable. In the same manner, the affidavit of DW-4 Abdul Faiyaz has also not been found reliable.
The petitioner had set up her ownership on the basis of oral Gift by Abdul Gaffar but the said oral Gift was also not proved at any stage.
The second limb of ownership was on the basis of adverse possession. The fact of adverse possession was also not proved and against it, it was proved that the husband of the petitioner was also the tenant of Rs.10/- per month to whom the notice of eviction was given by Abdful Gaffar - the previous owner. When the husband of the present petitioner was not the owner of the house, then certainly the petitioner cannot get title of the house in dispute in inheritance. Certainly, she has inherited the tenancy rights.
Accordingly, the intricate question of title was not involved in the proceedings before the Trial Court and the petitioner had not came forwarded with a definite title. Therefore, the court below has rightly rejected the application under Section 23 by order dated 09.02.2005, which has also become final.
The learned court below has considered all the aspects of the matter in detail regarding the ownership of the respondent no.3, who has proved the ownership by various sale deeds since the year 1909 while the petitioner has failed to establish her title either on the basis of oral gift or on the basis of adverse possession.
As far as the fact of subletting and material alteration in the property in dispute are concerned, they have also been proved by the opposite party no.3.
Hon'ble Apex Court in Budhu Mal vs. Mahabir Prasad and others reported in 1988 (2)ARC 260 has held that Section 23 does not make it obligatory on the court of Small Causes to invariably return the plaint once a question of title is raised by the tenant but if the suit cannot be construed to be one between landlord and tenant, they will not be cognizable by the court of Small Causes and it is for these reasons in such cases, the plaints may be returned for presentation to the appropriate court.
Hon'ble the Apex Court in Shamim Akhtar vs. Iqbal Ahmad Khan and others reported in 2000 (2) ARC 327 and this court in Bashir Ahmad vs. Ist Additional District Judge Saharanpur and others reported in 2000 (2) ARC 327 has held that the question of title could also have gone incidentally. The mere denial by a tenant-respondent about the relationship of landlord and tenant would not avoid eviction proceedings before the Small Causes Court.
Learned counsel for the petitioner has further relied upon Committee of Management Gangadin Ram Kumar Inter College, Ramgarh Barwan, Dsitrict Jaunpur vs. Deputy Director of Education Varanasi and others reported in [2006 (24) LCD 1328] in which the Hon'ble Division Bench of this Court relying upon Dhirajlal Girdharilal vs. Commissioner of Income Tax, Bombay reported in AIR 1955 SC 271 has held that when a court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding.
In the present proceedings, to my opinion, both the courts below have not relied upon any irrelevant material so as to vitiate their mind. Both the courts below have considered all the aspects of the matter in detail and finding are based on the material placed on record and they are supported by cogent reasons. Therefore, I do not find any ground to interfere with the said findings.
This writ petition has been filed under Article 226 of the Constitution with a prayer to issue a writ of certiorari. The judicial order of the courts below have been challenged.
Hon'ble Apex Court in a recent judgement reported in (2015) 0 Supreme (SC) 158 [Radhey Shyam vs. Chhabi Nath] has held that a writ of certiorari is not available against the judicial order of a competent court because the court could not violate the fundamental rights. It has further been held that even incidental violation cannot be held to be violative of fundamental rights. It has further been held that an order of civil court could be challenged under Article 227 and not under Article 226.
Present writ petition has been filed under Article 226 of the Constitution of India with a prayer to quash the order dated 06.02.2008 passed by the Additional District Judge, Court no. 12, Lucknow. Thus, the writ petition is also not maintainable to this aspect of the matter.
For the facts and circumstances stated above, I do not find any merit in the present writ petition. The writ petition is dismissed. The interim order dated 27.02.2008 stands vacated.
The petitioner is directed to vacate the premises in question within one month from today.
No costs.
Order Date :- 7th April, 2015 VNP/-