Allahabad High Court
Asharam Chaurasia vs Om Prakash Gupta And 2 Others on 16 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1513, (2019) 136 ALL LR 533, (2019) 3 ALL RENTCAS 63, (2019) 5 ALL WC 4251, (2019) 9 ADJ 156 (ALL)
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- MATTERS UNDER ARTICLE 227 No. - 5314 of 2019 Petitioner :- Asharam Chaurasia Respondent :- Om Prakash Gupta And 2 Others Counsel for Petitioner :- Prem Chandra,Manish Chandra Tiwari Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Manish Chandra Tiwari, learned counsel for the petitioner.
2. The present petition seeks to challenge the order dated 31.01.2018 passed by the Civil Judge (Senior Division) F.T.C. Jaunpur in SCC Suit No. 03/2009 (Om Prakash Vs. Asharam) whereby the application (Application No. 107-Ga) filed by the petitioner under Section 23 of the Provincial Small Causes Courts Act, 1887, (hereinafter referred to as 'the Act') has been rejected. The petitioner also seeks to challenge the order dated 18.05.2019 passed in Civil Revision No. 27/2018 in terms of which the revision filed against the aforementioned order has been dismissed.
3. The sole contention raised by the counsel for the petitioner is that questions of title having been raised the Small Causes Court was not entitled to adjudicate upon the issues regarding the same and as such it should have passed an order directing return of the plaint.
4. Records of the case indicate that the aforementioned contention was raised before the trial court also and has been repelled upon taking notice of the fact that the petitioner had duly admitted the plaintiff to be the landlord, and once the landlord-tenant relationship had been accepted the application filed under Section 23 of the Act was liable to be rejected. The trial court has also taken note of the fact that no material evidence had been placed on record by the petitioner-tenant to show that there was any question of title pertaining to the property in dispute. The revisional court has reiterated the aforementioned findings and has held that in the absence of any material evidence having been produced by the petitioner-tenant mere assertion that questions of title were involved would not be sufficient to raise a claim for return of plaint under Section 23 of the Act, and accordingly the revision has also been dismissed.
5. It may be noticed that Section 23 of the Act provides for return of plaint in a suit involving questions of title and in terms thereof when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title 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.
6. It is thus clear that Section 23 confers a discretion on the Small Cause Court to return a plaint when a dispute in respect of title is raised which it finds is of such a nature that it would be more appropriate to be decided by regular civil court.
7. The Court while considering the return of plaint, has to bear in mind that the right of the plaintiff and the relief claimed by him must be of such a nature that the same would depend upon "proof or disproof of a title to immovable property". Thus, for the Court to exercise its discretion to return the plaint, there must be prima facie material on record to demonstrate that there was a serious substantial and complex issue of title which may justify the relegation of the parties to institute appropriate proceedings before the regular civil court having jurisdiction to determine the title.
8. The scope of Section 23 of the Act came up for consideration in the case of Budhu Mal Vs. Mahabir Prasad & Ors.1, and it was 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, and a question of title could also incidentally be gone into by the Court of Small Cause. The observations made in the aforementioned judgment are as follows :-
"10. It is true 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. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties...."
9. Reference may also be had in the case of Pratap Singh Vs. IXth Additional District Judge, Fatehpur and Ors.2, wherein it was held as follows :-
"6. A Small Causes Court is expected to try suits of a comparatively simple character and, therefore, suits involving question of title should not be entertained by that Court. Section 23 is intended to enable the Courts of Small Causes to save their time by returning the plaints in suits which involve enquiry into the question of title. This section is designed to meet the cases in which Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in ordinary Court in which evidence is recorded in full and the decision is open to appeal. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would. if given by an original Court. ordinarily be subject to appeal and even to second appeal and which decision would ordinarily be res judicata between the parties, should be given in the particular case before a Small Causes Court, by an original Court, the Small Causes Court though competent to decide incidentally the question of title in that particular case might exercise with discretion. the power of returning the plaint to be presented to the original Court which would have jurisdiction to so decide on that title finally. Obviously, the section is designed to meet the cases in which the Judge. Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in an ordinary Court in which evidence is recorded in full and decision is open to appeal.
7. Section 23 is framed in optional terms giving discretion to the Court to act in the matter or not. and therefore, in suits involving question of title, the Small Causes Court has a discretion either to decide the question of title or to act under this section and return the plaint. It is not always bound to return the same. Nevertheless, when any complicated question of title arises. it would be the wiser course for Small Causes Court in the exercise of its discretion to act under Section 23 and return the plaint."
10. In the case at hand, the tenant-landlord relationship having been admitted the provisions of Section 23 would not be attracted.
11. In this regard reference may be had to the judgment in the case of Shri Kant Trivedi Vs. Vijay Rani Tandon and another3 where this Court upon taking note of the fact that the defendant-tenant had accepted relationship of landlord and tenant between the parties, held that no error had been committed by the court below in rejecting the application for return of plaint under Section 23 of the Act. The observations made in the judgment are as under :-
"2. In view of above agreement, under which the defendant revisionist accepts the relationship of landlord and tenant between the parties, the court below has not committed any error in rejecting the application under Section 23 of the Act inasmuch as the suit for arrears of rent and eviction is supposed to be decided on the basis of the above relationship and the question of title does not get involved at all."
12. A similar view was taken in the case of Jugal Kishore Vs. The IInd Additional District Judge, Jalaun at Orai and others4, wherein this Court upon considering the fact that the authorities had found that there was a relationship of landlord and tenant between the petitioner and respondent, the refusal by Judge Small Causes Court to return the plaint could not be said to be arbitrary. The observations made in the aforementioned judgment are as follows :-
"The second argument of the learned counsel for the petitioner was that since the dispute raised into written statement was relating to the title of the property, the Judge Small Causes under Section 23 of the Provincial Small Cause Court Act should have returned the plaint for presentation to the regular side. All the authorities have found that there was a relationship of landlord and tenant between the petitioner and respondent no. 3. On that basis the suit was decreed. Section 23 is not mandatory in nature and confers discretion on the court before which the suit is filed. On the facts and circumstances of the present case it cannot be said that refusal to return the plaint was arbitrary or was in violation to any provision of law."
13. It may thus be seen that where the Small Cause Court is called upon to consider a prayer for return of plaint under Section 23 of the Act, what is required to be considered is whether the suit has been filed on the basis of relationship of landlord and tenant and as to whether the denial of relationship of landlord and tenant was bonafide or had been set up only to oust the jurisdiction of the Judge Small Cause Court. In a case where relationship between the parties of landlord and tenant had been established refusal by the trial court to return the plaint could not be said to be arbitrary.
14. A suit for eviction filed before the Judge Small Cause Court is to be decided on the basis of the relationship of landlord and tenant, and in a case where the said relationship is duly established the question of title does not at all get involved and the provisions of Section 23 of the Act for return of plaint would not be attracted.
15. The aforementioned legal position has been considered by this Court in a recent judgment in the case of Ashok Kumar Gumbar and another Vs. Waqf Khudaband Tala Mausuma5.
16. This Court may also take notice of the fact that the power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil6, and also in the case of Radhey Shyam and another Vs. Chhabi Nath and others7.
17. Counsel for the petitioner has not been able to point out any material error or illegality in the orders passed by the courts below so as to warrant interference in exercise of power under Article 227 of the Constitution of India.
18. Petition lacks merit and is accordingly dismissed.
Order Date :- 16.7.2019 Pratima (Dr.Y.K.Srivastava,J.)