Allahabad High Court
Harihar Tiwari vs Kshetriya Sri Gandhi Ashram on 27 January, 2020
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 10 Case :- SECOND APPEAL No. - 94 of 2020 Appellant :- Harihar Tiwari Respondent :- Kshetriya Sri Gandhi Ashram Counsel for Appellant :- Ambrish Chandra Pandey,Sandeep Kumar Tiwari Counsel for Respondent :- Digvijay Singh Connected with Case :- SECOND APPEAL No. - 92 of 2020 Appellant :- Harihar Tiwari Respondent :- Kshetriya Sri Gandhi Ashram Counsel for Appellant :- Ambrish Chandra Pandey,Sandeep Kumar Tiwari Counsel for Respondent :- Digvijay Singh Hon'ble Vivek Kumar Birla,J.
1. Heard learned counsel for the defendant-appellant, who is plaintiff-appellant in the connected Second Appeal No. 92 of 2020 and Sri Digvijay Singh, learned counsel appearing for the plaintiff-respondent in the present appeal, who is defendant-respondent in the connected Second Appeal No. 92 of 2020.
2. Since, same premises in question is involved in Original Suit No. 114 of 2017 (Computer No. 101 of 2017) as well as in the Original Suit No. 9 of 2017 (Computer No. 102 of 2017) between the same parties, the same are being connected and are being decided by a common judgment.
3. Second Appeal No. 94 of 2020 has been filed for setting aside the judgment and order dated 16.10.2019 (decree dated 22.10.2019) passed by the Additional District and Session Judge, Court No. 1, Moradabad in Civil Appeal No. 30 of 2019 (Harihar Tiwari vs. Kshetriya Sri Gandhi Ashram) as well as order dated 3.4.2019 passed by the Additional J.S.C.C. / Additional Civil Judge (Senior Division) in O.S. No. 114 of 2017 (Kshetriya Sri Gandhi Ashram vs. Harihar Tiwari).
4. Second Appeal No. 92 of 2020 has been filed for setting aside the judgment and order dated 16.10.2019 (decree dated 22.10.2019) passed by the Additional District and Session Judge, Court No. 1, Moradabad in Civil Appeal No. 31 of 2019 (Harihar Tiwari vs. Kshetriya Sri Gandhi Ashram) as well as order dated 3.4.2019 (decree dated 9.4.2019) passed by the Additional J.S.C.C. / Additional Civil Judge (Senior Division) in O.S. No. 09 of 2017 ( Harihar Tiwari vs. Kshetriya Sri Gandhi Ashram).
5. Original Suit No. 09 of 2017 was filed by Harihar Tiwari against Kshetriya Sri Gandhi Ashram for permanent injunction regarding the premises in question, which is in his possession as employee of the Kshetriya Sri Gandhi Ashram. Original Suit No. 114 of 2017 was filed against Harihar Tiwari by Kshetriya Sri Gandhi Ashram for mandatory injunction on the allegation that after termination of his services he is unauthorized occupant in the premises in question and therefore, decree of eviction/possession against him was prayed for.
6. Common facts are involved in both the suits. Though they were not consolidated but were decided by the judgments of the same date.
7. In the present second appeal, submission of learned counsel for the appellant is that his occupation of the premises in question was as an employee of the Kshetriya Sri Gandhi Ashram. His services were undisputedly terminated by the Management Committee on 8.7.2013 and the Assistant Registrar Firm, Society and Chits, Moradabad set aside the said order vide order dated 4.3.2014. Challenging the same Writ Petition No. 17553 of 2014 was filed by Kshetriya Sri Gandhi Ashram, wherein the interim order dated 26.3.2014 was granted staying the operation of the order dated 4.3.2014 passed by the Assistant Registrar. He submits that since writ petition is still pending, therefore, he is not unauthorized occupant and that the suit itself was not maintainable.
8. For the purpose of entertaining present appeal as well as the connected appeal learned counsel for the appellant submitted that the suit itself was not maintainable in view of the provisions of Section 15 of the U.P. Public Premises (Eviction of Unauthorized Occupant) Act, 1972 (hereinafter referred to as the Act of 1972). After arguments learned counsel for the appellant admitted that infact, his suit was filed as a regular civil suit and was decided by the Civil Judge as a regular civil court and therefore, other grounds and questions relating to J.S.C.C. would not be relevant.
9. I have carefully gone through the substantial questions of law framed in the memo of appeal in both the appeals.
10. Substantial questions of law framed in both the appeals are quoted as under:-
Second Appeal No. 94 of 2020"A. Whether both the courts below have exceeded their jurisdiction in deciding the suit/appeal which was bar under section 15 of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972.
B. Whether the J.S.C.C. Court has erred in taking the cognizance of the suit which is barred by Article 4, Article 17, and Artical 19 of Scheduled 2 of the Provincial Small Cause Court Act, 1887.
C. Whether the lower appellate court was justified in deciding the appeal whereas no appeal lies under section 96 of C.P.C. against the judgment and decree of J.S.C.C. Courts.
D. Whether both the court below was justified in passing the order of eviction on the ground of dismissal of service which is still subjudice before this Hon'ble High Court.
E. Whether the J.S.C.C. Court erred in taking the cognizance of the suit on the ground of pecuniary jurisdiction as the valuation of suit is above 1,00,000/-."Second Appeal No. 92 of 2020
"A. Whether both the courts below have exceeded their jurisdiction in deciding the suit/appeal which was bar under section 15 of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972.
B. Whether the trial court below was justified in dismissing the suit without deciding the issue no. 4, regarding the jurisdiction of court, which is in the teeth of the requirement of order XX Rule 5 C.P.C.
C. Whether the lower appellate court was justified in deciding the appeal whereas no appeal lies under section 96 of C.P.C. against the judgment and decree of J.S.C.C. Courts.
D. Whether the J.S.C.C. Court has erred in taking the cognizance of the suit which is barred by Article 4, Article 17, and Artical 19 of Scheduled 2 of the Provincial Small Cause Court Act, 1887.
E. Whether both the court below was justified in passing the order of eviction on the ground of dismissal of service which is still subjudice before this Hon'ble High Court.
F. Whether the J.S.C.C. Court erred in taking the cognizance of the suit on the ground of pecuniary jurisdiction as the valuation of suit is above 1,00,000/-."
11. He submits that substantial question of law involved in the case is as to whether the suit filed by the Kshetriya Sri Gandhi Ashram was barred by Section 15 of the Act of 1972. He has placed reliance on judgment of Hon'ble Apex Court in the case of Kiran Singh and others vs. Chaman Paswan and others AIR 1954 SC 340 to submit that question of jurisdiction can be raised at any point of time even if the same was not raised earlier. He submits that in case the court has no jurisdiction then the decree and judgment of the trial court or any other court not having jurisdiction would be a nallity.
12. Per contra, learned counsel for the respondent has disputed the same and submits that the suit was maintainable. He further submits that hence no substantial question of law is involved and the present second appeal is devoid of merits. He submits that Harihar Tiwari was unauthorized occupant after termination of his services and his status as on date is that of an unauthorized occupant and hence, no relief can be granted to the appellant.
13. I have considered the submissions and have perused the record.
14. The facts are not in dispute.
15. In support of his arguments of learned counsel for the appellant that a substantial question of law is involved, he has also drawn attention to Section 15 of the Act of 1972, which provides that the jurisdiction of civil court is barred in case of a public premises.
16. A reference to definition of public premises as given in the Act would, therefore, be relevant. Section 2(e) of the Act of 1972 provides for definition of public premises. Sub-section (iv) of Section 2(e) provides as under:-
"(e) "public premises" means any premises belonging to or taken on lease or requisitioned by, or on behalf of, the State Government, and includes any premises belonging to, or taken on lease by, or on behalf of-
(i) .....
(ii) .....
(iii).....
(iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers or nominees of the State Government or both."
(emphasis supplied)
17. A perusal of the aforesaid definition clearly indicates that the Act would apply only in case, when a society is registered under the Societies Resigration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers or nominees of the State Government or both. Therefore, it is very much clear that unless the governing body of the society consists of wholly of public officer or nominees of the State Government or both, only then it can be treated as a society referred to in Section 2(e) (iv) of the Act and premises whereof would be treated as a "public premises".
18. In the present case, it is not the case of Harihar Tiwari that the society (his employer) consists of any such governing body or any such persons as given in Clause (iv) of Section 2(e) of the Act of 1972.
19. A perusal of the trial court's judgment would clearly indicates that issue no. 5 was framed in respect as to whether the court has jurisdiction to try the suit. This issue was decided against the defendant Harihar Tiwari vide order dated 27.2.2018 and was made part of the judgment.
20. A perusal of memo of 1st appeal filed before the lower appellate court clearly indicates that the said finding on issue no. 5 was not challenged and the jurisdiction of the court was thus, admitted by the appellant Harihar Tiwari.
21. Even if it is accepted that the question of jurisdiction can be challenged at any stage, this Court is of the opinion that since the society is not being alleged to be a society governing body whereof consists of wholly of public officers or nominees of the State Government or both, under such circumstances, Kshetriya Sri Gandhi Ashram cannot be treated to be a society, premises whereof can be held to be "public premises" as provided under Section 2(e) of the Act of 1972. Fact of the matter is that there was even no pleading to this effect.
22. A Constitutional Bench of 5 Judges of Hon'ble Apex Court in Sir Chunilal V. Mehta and sons Ltd vs. Century Spining and Manufacturing Co. Ltd AIR 1962 SC 1314 has considered the question 'as to what is the substantial question of law'. Various judgments of High Courts and Full Bench were considered by the Hon'ble Constitutional Bench and it was held that if the question is settled then it would not be a substantial question of law. Paragraph 6 of the aforesaid judgment is quoted as under:-
"6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by. the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
(emphasis supplied)
23. Therefore, it is clear that merely because in the substantial question of law so framed in the memo of appeal involving interpretation of any particular provision of the law by itself could not be a substantial question of law.
24. In the present case, definition of the word "public premises" itseld would make it abundantly clear that in absence of any pleading or evidence on record to the effect that the defendant society was a society covered under Clause (iv) of Section 2(e) of the Act of 1972, the suit cannot be said to be barred by Section 15 of the Act of 1972.
25. In the opinion of this Court it is not a substantial question of law, which requires any interpretation by this Court in view of the law laid down by Hon'ble Apex Court in Sir Chunilal V. Mehta and sons Ltd (supra) the question framed above, even if it is treated to be a question of law, it is not open to interpretation.
26. Insofar as the substantial questions of law as framed in the memo of appeal regarding applicability of the Provincial Small Causes Court Act are concerned, it is clear that both the suits filed as regular original suits and were decided on regular civil side and not by the court as Judge, Small Causes, therefore, first appeal is maintainable under Section 96 of C.P.C. Hence, no substantial question requiring interpretation of or applicability of Provincial Small Causes Court Act, 1887 is involved in the present appeal in this regard is involved. His position has also been admitted by learned counsel for the appellant during course of arguments.
27. This Court is of the opinion that no substantial question of law is involved in the present case.
28. Both the appeals are devoid of merits and are accordingly dismissed.
Order Date :- 27.1.2020 Lalit Shukla