Mangat Ram Jain v. Goverdhan Dass Talwar — 1978 DIGILAW 60 (ALL)

JUDGMENT M.P. Saxena, J. - This is a defendants' revision application under section 115 of the Civil Procedure Code against the judgment and order dated 25.10.1975 passed by the Vth Additional District Judge, Meerut. 2. Briefly stated the facts are that the plaintiff opposite party is the owner of the house in suit and had let it out to Atma Ram Jain, since deceased, on a monthly rent of Rs. 8.75. The landlord moved an application under section 3 of the U.P. Act III of 1947 for permission to file a suit for ejectment against Atma Ram Jain. The permission was granted on 29.9.1959. Atma Ram Jain filed a revision under section 3(3) of the said Act which was rejected by the Commissioner on 22.12.1959. The representation filed by him under section 7F of the said Act was also rejected on 23.5.1962. Atma Ram Jain died on 26.5.1962. The revisionists, who are the heirs of Atma Ram Jain, remained in possession of the disputed house. On 15.12.1967 a notice of demand and ejectment was given to them by the landlord requiring them to pay the arrears of rent and to vacate the house. Rent was in arrears from 10. but the suit was filed for the recovery of rent for three years only. The suit was filed on 24.9.1968 in the court of the Munsif Ghaziabad. It was transferred to the court of the Additional Munsif and on 19.11.1970 to the Court of IV Additional Munsif, Ghaziabad. In this court a preliminary issue was taken up for disposal on 10.7.1971 and statement of one witness was recorded. Finding on this issue was given on 27.7.1971. The U.P. Civil Laws Amendment Act 1972 (U. P. Act 37 of 1972) came into force on 20.9.1972. According to section 9 of this Act suits for ejectment of tenants after determination of lease and for the recovery of arrears of rent etc. pending in regular courts stood transferred to the Small Cause Courts, provided recording of evidence had not started. On 16.12.1972 the District Judge passed an order transferring this case to the court of the Judge Small Causes. It was received in that court on 1.11.1973. After recording further evidence the suit was dismissed on 15.2.1973. The plaintiff filed a revision under section 25 of the Small Cause Courts Act which was allowed on 25.10.75. Hence this revision application by the defendants. 3. It was received in that court on 1.11.1973. After recording further evidence the suit was dismissed on 15.2.1973. The plaintiff filed a revision under section 25 of the Small Cause Courts Act which was allowed on 25.10.75. Hence this revision application by the defendants. 3. The learned counsel for the revisionists has vehemently contended that recording of evidence in this case had started before 20.9.1972, when the U. P. Act 37 of 1972 came into force and the suit could not be transferred to the Small Cause Court. The learned counsel for the opposite party has repelled this contention on the ground that this plea was not raised before the lower courts and cannot be taken for the first time at this stage and more so when he had submitted to the jurisdiction of the Small Cause Court. There is force in the contention of the learned counsel for the revisionists as jurisdiction cannot be conferred by consent. Recording of evidence had started before 20-9-1972 and the suit could not be transferred to the Small Cause Court. It had no jurisdiction to try it and as this question goes at the root of the whole matter this court is competent to entertain it. 4. The effect of the provision of section 9 U.P. Act 37 of 1972 was analysed in the fase of Kailash Chandra and others v. Latta Pd., 1976 A.L.J. 701, and it was held that a pending suit will stand transferred if the following five conditions were satisfied : - 1. It was suit by a lessor for the eviction of a lessee from a building after the determination of his lease, or for the recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease or of compensation for the use and occupation thereof after such determination of lease ; 2. The suit was instituted before 20-9-1972, the date of commencement of Act 37 of 1972 ; 3. It was instituted in a court other than a Court of Small Causes or a court of a Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes ; and 4. It was pending in that court immediately before 20-9-1972. 5. It was instituted in a court other than a Court of Small Causes or a court of a Civil Judge or Munsif exercising jurisdiction of a Judge of a Court of Small Causes ; and 4. It was pending in that court immediately before 20-9-1972. 5. The recording of oral evidence for any party had not commenced or concluded before 20-9-1972." It makes it clear that if recording of evidence had started in any suit pending on the regular side before the commencement of U P. Act 37 of 1972 i. c. 20-9-1972 it could not be transferred to a Small Cause Court. In the instant case IVth Additional Munsif, Ghaziabad, had taken up issue No. 6 as a preliminary issue and recorded evidence of one witness before 20-9-1972. This issue was disposed of on 27-7-1971. Therefore, the suit could not stand transferred to the court of the Small Causes and the learned Judge-Small Cause court had no jurisdiction to try it. The decree passed by him is vitiated by lack of jurisdiction and is liable to be set aside. 5. The revision application is allowed and the order dated 25-10-1975 passed by the learned Lower revisional court and the judgment and decree dated 15-2-1973 passed by the learned Judge Small Cause Court, Ghaziabad, are set aside. The case is sent back to the court of the IVth Additional Munsif, Ghaziabad, for re-hearing from the stage at which it was on the date of transfer to the court of Small Causes. If the court of 1Vth Additional Munsif is not in existence now, this case will be tried by Munsif, Ghaziabad, in the same manner. In the circumstances of this case the parties will bear their own costs of this Court as well as of the lower revisional court. The learned Munsif will dispose of the case expeditiously.