Ram Prasad v. VIIIth Additional District Judge — 1980 DIGILAW 720 (ALL)

JUDGMENT : A.N. VARMA, J. 1. This is a tenant's petition. It arises out of a suit filed by the Plaintiff-Respondents against the Petitioner for ejectment from a shop. 2. The relevant facts are these. The suit was originally instituted before the learned Munsif Ghaziabad. Subsequently, it was transferred to the II Additional Munsif, Ghaziabad. While the suit was pending before II Additional Munsif, Ghaziabad, U.P. Civil Laws (Amendment) Act, 1972 came into force. Section 9 of this Act provides that a suit of the nature of one in hand instituted before the commencement of the said Act in any court other than a court of Small Causes, shall stand transferred to the court of Small Causes or a court invested with the powers of a Small Cause Court. In pursuance of this provision, the suit stood transferred to the court of III Additional Munsif, Ghaziabad exercising powers of Judge Small Causes. Thereafter, the said learned III Additional Munsif tried the suit and decreed it. 3. Aggrieved by the decision of the trial court, the Petitioner filed a revision u/s 25 of the Small Causes Court, which has been dismissed by the learned VIII Additional District Judge, Meerut by the order dated 6-5-76. 4. Counsel submitted only two points for my consideration and these are: 1. The provisions of Section 9 of the U.P. Civil Laws (Amendment) Act, 1972 which provides for transfer of suits pending before Munsifs on the regular side to the Judge Small Causes, was not applicable to the present case inasmuch as the suit was not pending before the court where it was initially instituted but before a transferee court; 2. The Petitioner having complied with Section 39 of U.P. Act No. 13 of 1972, the suit of the Plaintiff-Respondent for the ejectment of the Petitioner could not legally be decreed. 5. Having heard Learned Counsel for the parties, I am clearly of the view that this petition has no merits. 6. I will dispose of the second point first. It was conceded by the Learned Counsel for the Petitioner that the present suit was governed neither by U.P. Act No. III of 1947 nor U.P. Act No. XIII of 1972. But the Defendant could certainly claim the benefit of Section 39 of U.P. Act No. XIII of 1972. 6. I will dispose of the second point first. It was conceded by the Learned Counsel for the Petitioner that the present suit was governed neither by U.P. Act No. III of 1947 nor U.P. Act No. XIII of 1972. But the Defendant could certainly claim the benefit of Section 39 of U.P. Act No. XIII of 1972. However, the learned District Judge has observed that benefit of this provision, namely Section 39 of U.P. Act No. 13 of 1972 was not claimed by the Petitioner. The allegations of the Petitioner in the writ petition to the effect that he had claimed the benefit of Section 39 has been denied by the Plaintiff-Respondent in the counter affidavit filed on his behalf in this Court (See paragraphs 14 and 15 of the counter-affidavit). In this state of things, I shall assume that the statement in the order under challenge on this aspect of the matter, is correct. The Petitioner not having claimed the benefit of Section 39 of U.P. Act No. XIII of 1972, the suit of the Plaintiff-Respondent was rightly decreed. 7. As regards the first point, I find that the Defendant had not raised any objection whatsoever when the suit was transferred to the court of Judge Small Causes. Not only did the Defendant not raise any objection, but he fully participated in the trial of the suit, which was filed as far back as 1972 prior to the coming into force of U.P. Act No. XIII of 1972. The learned District Judge has rightly refused to entertain this plea on the ground that the same had not been raised before the trial court. 8. In support of his contention that Section 9 of the U.P. Civil Laws Amendment Act, 1979 did not apply to the facts of the present case, the Petitioner placed reliance on a decision of this Court in the case of K.K. Saksena, Advocate Vs. S.N. Mishra and Others, (1975) AWC 420. In this decision, it has been laid down by a learned Judge of this Court that Section 9 of U.P. Civil Laws Reforms (Amendment) Act, 1972 would apply only if the suit had been pending before the court where it was instituted and not in the court to which it might have been transferred. The view of the learned District Judge was that Section 9 would not apply to transferee court. The view of the learned District Judge was that Section 9 would not apply to transferee court. With great respect to the learned Judge, I am not inclined to share his view on the interpretation of Section 9 of U.P. Civil Laws Amendment Act 1972. In my humble view, the interpretation placed by the learned Judge on Section 9 is too literal and is not warranted by the whole scheme of the Act. However, it is not necessary to refer the matter to a larger Bench as the petition could be disposed of on a narrower ground. 9. It was not disputed by the counsel for the Petitioner that the learned District Judge certainly had jurisdiction to hear the revision filed by the Petitioner. The revisional court has affirmed the order passed by the trial court on merits. In Munnoo Baboo v. The District Judge 1978 UPRCC 555, a learned Judge of this Court had occasion to consider an objection similar to the one raised by counsel for the Petitioner in this case. It was there argued that the officer who had passed the order u/s 21 of U.P. Act No. 13 of 1972 purporting to act as Prescribed Authority under that Act, had been invested with the powers of Prescribed Authority and was, therefore, not competent to pass the order. The learned Judge held that inasmuch as the order of the officer purporting to act as the Prescribed Authority had been affirmed in appeal by the learned District Judge, who was competent to hear the appeal, the appeal having been filed by the Petitioner himself, the defect of jurisdiction of the Prescribed Authority was cured. Learned Counsel for the Petitioner made no attempt to demonstrate that the order passed by the learned District Judge in revision was in any way erroneous or unsustainable. Following the ratio of the decision of Munnoo Baboo's case (supra), I hold that the defect, if any, stood cured by the judgment of affirmance given by the learned District Judge. 10. In any case, the-order of re-trial after a lapse of eight years would entail great harassment and hardship to the Respondent. The Defendant not having raised the plea of jurisdiction before the trial court, he ought not to be permitted to raise the same in these proceedings. 10. In any case, the-order of re-trial after a lapse of eight years would entail great harassment and hardship to the Respondent. The Defendant not having raised the plea of jurisdiction before the trial court, he ought not to be permitted to raise the same in these proceedings. Learned Counsel was not able to show that the Petitioner has been prejudiced in the slightest degree in the trial of the suit. Under these circumstances, this is not a fit case at all for interference., 11. For the reasons stated above, this petition fails and is dismissed. There will be no order as to costs.