Allahabad High Court
Jagannath Prasad vs District Judge, Allahabad And Ors. on 10 November, 1986
Equivalent citations: AIR1987ALL317, AIR 1987 ALLAHABAD 317, 1987 ALL CJ 108, 1987 ALL CJ 331, (1987) 1 ALL RENTCAS 89, (1987) ALL WC 436
ORDER S.D. Agarwala, J.
1. This is a petition under Article 226 of the Constitution of India.
2. The facts giving rise to the present petition are as under : --
A Suit No. 651 of 1978 was filed by respondents Nos. 3 to 5 in the Court of Judge, Small Causes, Allahabad, against Jagannath, the petitioner, for a decree of ejectment and arrears of rent and damages. After the written statement was filed, an application was moved by the petitioner on 18th December, 1979, under Section 23 of the Provincial Small Cause Courts Act with the allegation that the Judge, Small Causes Court, had no jurisdiction to try the suit and the plaint was liable to be returned for presentation to the proper Court This application was rejected by the Judge, Small Causes Court on 15th Feb. 1980, holding that the Court did not consider it proper to determine the question as to the infringement of the title at this stage or for sending the case for presentation before the proper Court. This order became final between the parties".
3. After a year, on 7th January 1981, another similar application was moved under Section 23 of the Provincial Small Cause Courts Act. This application was rejected by order dated 25th March, 1982. Against the order dated 25th March, 1982, revision was filed by the petitioner before the revisional court. The revision was also dismissed on 11th May, 1982. The petitioner has now challenged the orders dated 25th March, 1982, and 11th May, 1982, by means of the present petition in this Court.
4. I have heard the learned counsel for the parties.
Learned counsel for the petitioner has contended that the court below acted illegally and without jurisdiction in exercise of its jurisdiction in not returning the plaint for presentation to the proper Court, as the question of title was involved in the present suit.
5. At the outset, it may be stated that on 15th Feb. 1980, the petitioner's application under Section 23 of the Provincial Small Cause Courts Act was rejected by the Court. That order became final. Once the order became final, it was not open to the petitioner to move a second application on similar grounds on which the order dated 25th March, 1982, was passed. The principles of res judicata are applicable to these proceedings. In the circumstances, even without considering on merits, the second application moved by the petitioner was not maintainable and as such, the order cannot be said to be in any manner erroneous in law.
6. Section 23 of the Provincial Small Cause Courts Act is quoted below :
"23(1). Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Courts may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.
(2) When a Court returns a plaint under Sub-section (1), it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of nature like to that of defect of jurisdiction".
7. Sub-clause (1) of Section 23 clearly provides that when the right of a plaintiff and the relief claimed by him in the Court of Small Causes depend upon 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 before a Court having jurisdiction to determine the title.
8. On a reading of this Sub-section (1), it is apparent that a discretion has been conferred on the Court to return the plaint if it is satisfied that a question of title is involved in the suit which it cannot finally determine. It is only in such a situation that it is open to the Court of Judge, Small Causes to exercise a discretion whether to return the plaint or not. A mere allegation in the written statement that the title vests in a defendant in a suit filed for ejectment and arrears of rent, is by itself not sufficient to establish that the question of title is involved in a suit. Only after evidence has been produced and the Court is of the opinion that a question of title is involved in the suit, which the Court of Judge, Small Causes cannot finally determine, it is open to the Court to return the plaint. In the present case, only a written statement had been filed in which the title had been set up. Mere filing of the written statement does not entitle the defendant petitioner to move an application for return of the plaint to the proper court. In view of the above, I am of the opinion that the court below was right in refusing to exercise a discretion under Section 23 of the Act at this stage.
9. In the result, the petition fails and is, accordingly, dismissed. The interim order dated 16th July, 1982, confirmed on 21st October, 1982, is hereby vacated. The Judge, Small Causes Court, is directed to dispose of the suit very expeditiously as the matter is now pending for nearly about seven years. Parties are directed to bear their own costs.