Gopal Chand Singh Roy v. District Judge Varanasi — 1996 DIGILAW 481 (ALL)

Judgment : D. K. Seth, J. 1. By an order dated 27th July, 1983, Suit No. 312 of 1980 filed before the Court of Small Causes Act was directed to be returned under Section 23 of the Provincial Small Causes Courts Act. By an application dated 28th July, 1983 the said order was sought to be recalled by the plaintiff. The said application was rejected by an order dated 29-7-1996, inter alia, holding that the said application under Section 151 of the Code of Civil Procedure is not maintainable because the said order is revisable. On 13th August, 1986, the plaintiff filed a revision which was registered as Miscellaneous Case Mo. 278 of 1986 before the learned District Judge, Varanasi, seeking condonation of delay under Section 14 of the Limitation Act which, however, was allowed before the said miscellaneous case was registered on 13th August, 1986, namely, on 7th August, 1987. By an order dated 14. 1. 1988 the revision was allowed by setting aside the order dated 27th July, 1983. It is against this order this writ petition has been preferred. 2. Mr. Bhuvneshwar Prasad, learned Counsel for the petitioner, contends that the plaintiff cannot resile from his own admission which is apparent on the face of his application dated 8th November, 1982, being Annexure-14 to the petition wherein the plaintiff himself has stated that the defendant has filed a regular suit which is pending and in the said suit the title of the plaintiff has been challenged and the defendant has claimed right over the property denying the title of the plaintiff which is subject-matter in the said suit and that the learned Civil Judge had passed ad interim injunction against the plaintiff in the said suit. The plaintiffs have filed their documentary evidence in the said regular suit which had reached the stage of final hearing and is expected to be decided in December, 1982 and that the challenge having been thrown to tie title of the plaintiff the Small Cause Court suit should be stayed till the regular suit is decided and, therefore, the plaintiff had prayed for stay of further proceedings for 2 months. After such an admission it was not open to the plaintiff to challenge the order for return of the plaint. MR. After such an admission it was not open to the plaintiff to challenge the order for return of the plaint. MR. Bhuvneshwar Prasad further contends that in view of Section 23 of the Provincial Small Cause Courts Act as soon as the title of the defendant is challenged and the relief claimed by the plaintiff is dependent upon proof or disproof of such title to the immovable property. It is incumbent upon the small cause court to return the plaint whether the plaintiff has title or not cannot be decided by the Court of Small Cause. Therefore, the revisional court while revising the order cannot step beyond the jurisdiction of the Court of Small Cause and cannot decide that the plaintiff has title and thereby set aside the order for return of the plaint. MR Bhuvneshwar Prasad further contends that the property originally belonging to the mother of the defendant who had mortgaged the said property by a document which was a deed of mortgage by conditional sale and the regular suit was a suit for redemption thereof. According to him the plaintiff had sought to deny the title from the person to whom the property was mortgaged and that the plaintiff was also made a party to the said suit as transfree. On these grounds he assailed the order passed in revision since impugned in the present petition. 3. Mr. S. Banerji, learned counsel for the respondent, on the other hand con tends that despite of Section 23 of the Provincial Small Cause Courts Act the small cause court can decide the title if it is ancillary to the question without really decid ing the complicated question when apparently title is apparent to matter whether the title is disputed by the defendant. According to him mere raising of a dispute with regard to title, as such, does not eclipse the jurisdiction of the Small Cause Court nor such a situation attracts the provision of Section 23 of the Provincial Small Cause Courts Act. According to him the revisional court have found that the defendant had admitted that he was a tenant under the predecessor-in-interest of the plaintiff. The revisional court has based its decision on the basis of the said document on record from which it was seen that the defendant had paid rent as tenant in respect of the suit property to the predecessor-in-interest of the plaintiff. The revisional court has based its decision on the basis of the said document on record from which it was seen that the defendant had paid rent as tenant in respect of the suit property to the predecessor-in-interest of the plaintiff. Therefore, according to him at that stage the small cause court was not called upon to decide the question of title but only to find out as to whether the relief claimed by the plaintiff is really dependent on the question of title to be decided or not. According to him it was not necessary to decide the title for the purpose of granting the relief on the basis of the document in which it was found that the defendant had paid rent to the predecessor interest of the plaintiff. 4. Mr. Bhuvneshwar Prasad in support of his contention sought to rely on the decision in the case of Smt. Indira Kaur and others v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074 and Patel Naranbhai Marghabhai and others v. Deceased Dhulabhai Golbabhi and others, AIR 1992 SC 2009 . But the said two cases deal with the question of mortgage which relates to title i. e. a question to be decided either in a regular suit. In a small cause suit we are concerned with the question whether there is any real dispute as to title or not. For our present purpose it is not necessary to refer to the said decisions, which has no manner of application in the facts of this case. He further relies on the judgment in the case of Ram Jiwan Misra v. Smt. Kallo and another, 1980 ARC 522, in support of his contention that even when the defendant do not set up title in themselves but when the title of the plaintiff is denied and the title is set up to a third party then also the title is disputed. He also relies on the decision in the case of Virendra Pratap Shukla v. Ram Swaroop and others, 1983 ARC 179 in support of his contention that if the question of title is involved then the plaint is required to be returned. Mr. He also relies on the decision in the case of Virendra Pratap Shukla v. Ram Swaroop and others, 1983 ARC 179 in support of his contention that if the question of title is involved then the plaint is required to be returned. Mr. Banerji on the other hand relies on in the case of Abdul Kalam v. Abdul Majid and another, 1992 (1) Civil and Revenue Cases 657 in order to sustain his contention that mere raising of a dispute to title does not attract Section 23 of the Provincial Small Causes Court Act. According to him the question of grant of relief of ejectment claimed by the plaintiff is dependent not on the question of title but on the question of existence of proof of the relationship of landlord and tenant, there fore, at every moment whenever a dispute is raised in regard to the title the Court does not become bound to return the plaint. 5. After having heard learned Counsel for the respective parties at length it appears that at one point of time the plaintiff himself had sought for stay of the suit on account of pendency of a regular suit wherein question of title appears to have been involved and on the other hand the revisional court finds from the document that the defendant has paid rent to the predecessor-in-interest of the plaintiff. These two facts counter balance each other so far as application of Section 23 of the Provincial Small Causes Court Act is concerned. Section 23 specifies "when the fight of a plaintiff and the relief claimed by him in a Court of Small Cause 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 before the Court having jurisdiction to determine the title. Therefore, the Court has to return the plaint only when it finds that the right of the plaintiff and the relief claimed by him is dependent upon the proof or disproof of a title to an immovable property. 6. Admittedly the present suit is a suit for ejectment between the landlord and tenant. Landlord may always not be the owner but still then there may be relation ship of landlord and tenant. 6. Admittedly the present suit is a suit for ejectment between the landlord and tenant. Landlord may always not be the owner but still then there may be relation ship of landlord and tenant. There might be relationship of landlord and tenant between two parties even though the landlord may not be the owner of the property, that apart every dispute with regard to title does not itself disentitle the Small Cause Court for deciding a suit. It is necessary for the Small Cause Court to come to a definite finding that the right of the plaintiff and the relief claimed by him is depend upon the proof or disproof of the title to the immovable property. The order dated 27th July, 1983, has not specified, as such, any finding to that effect. It has passed the said order only upon comparison of the plaint in the 2 cases. Whereas the revisional court has passed its finding on the basis of a document which prima facie shows that there was an existence of relationship of landlord and tenant. The application dated 8th November, 1992, by which the plaintiff had prayed for stay cannot be conclusive ly be treated as an admission that there was a real dispute with regard to title of the plaintiff. Even then the question involved is a question of jurisdiction which the court has to decide not on the basis of admission of the parties but on the materials available on record. Jurisdiction cannot be created even by admission of either of the parties. That it is an established principle of law that as soon the question of proof or disproof of title to immovable property is involved, Small Cause Court Act looses its jurisdiction and is bound to return the plaint under Section 23. But it does not preclude the Small Cause Court to look into the dispute as to whether it is necessary to return the plaint after satisfying that the right of the plaintiff and the relief claimed by him is dependent on such proof or disproof of title to immovable proper ty. The said section empowers to Small Cause Court to return the plaint at any stage of proceedings. The said section empowers to Small Cause Court to return the plaint at any stage of proceedings. In the present case it appears that the plaint has been returned almost at the threshold though the revisional court has found that the suit is entertainable by the Court of Small Causes Court but still the same is tentative for the purpose of deciding the question posed before it with regard to Section 23 of the said Act for return of the plaint it cannot be said to be conclusive. The same defence that the Court of Small Cause has no jurisdiction to decide that said suit in view of the fact that the right of the plaintiff and the relief claimed by him is dependent upon the proof or disproof of title to immovable property remains still open to the defendant to be agitated as a defence in the said suit and even at that stage of final hearing and on disposal it so appears then the plaint might be returned. The question being a question of jurisdiction should be decided with care and caution otherwise even after presentation of the suit before another court after return under Section 23, the other court might come to the conclusion that it is not dependent on to proof or disproof the title to immovable property and the suit is entertainable by the Court of Small Causes Court. 7. In the case of Abdul Kalam it has been held that the "question of grant of relief of ejectment claimed by the plaintiff-opposite parties against the defendant-revisionist depends on the existence of proof of the relationship of landlord and tenant and not on the proof or disproof of the title to the property in dispute. Needless to say, if the plaintiff-opposite parties fail to prove the relationship of landlord and tenant between them and the defendant-revisionist, the suit would fail. The court below has come to the conclusion that in the instant case the controversy to be determined is whether there exists relationship of landlord and tenant between the defendant- revisionist and the plaintiff-opposite parties. This finding has not been demonstrated to be contrary to law in any manner. 8. The court below has come to the conclusion that in the instant case the controversy to be determined is whether there exists relationship of landlord and tenant between the defendant- revisionist and the plaintiff-opposite parties. This finding has not been demonstrated to be contrary to law in any manner. 8. Mere denial of the title of the plaintiff landlords in relation to the disputed house by the defendant- tenant cannot oust the jurisdiction of the Judge, Small Causes obliging him to direct the return of the plaint under Section 23 of the Act. " Relying on the said decision it appears to me that in the present case the impugned order, dated 27- 7-1983 suffers from material, irregularity inasmuch as it has not examined and had come to a definite conclusion that the plaintiff's right and the relief claimed by him is dependent upon the proof or disproof of the title to the immovable property. While exercising jurisdiction under Article 226 against the revisional order this Court is also not called upon to decide the question of fact as to whether the right of the plaintiff or the relief claimed by him is dependent upon the proof or disproof in the absence of sufficient material before it. As translated at the bar the revisional order appears to be based on appropriate reasons with which I am unable to find any infraction of fundamental principle of law. I am, therefore, not inclined to interfere with the said revisional order. This petition, therefore, fails and is dismissed. 9. This order, however, will not preclude the defendant from raising the same question at the final hearing of the said suit before the Court of Small Cause and if such a question is raised, the Court of Small Cause shall decide the same while deciding the suit itself in the light of the observations made above and pass appropriate order in accordance with law. Since in the meantime long 16 years have lapsed this Court hopes and trusts that the learned Court of Small Cause shall make an endeavour to decide and dispose of all the question raised in the suit within a period of one year from the date of certified copy of this order is produced before him. Both the learned Counsel appearing for the parties assure that their client would not ask for adjournment except the same is exceptionally unavoidable. Both the learned Counsel appearing for the parties assure that their client would not ask for adjournment except the same is exceptionally unavoidable. It may be recorded that I have not decided anything on merit of the rival claim of the parties as well as the issues involved with regard to Section 23 of the Provincial of Small Causes Court Act. There is, however, no order as to costs. 10. A certified copy of this order be issued to the learned Counsel, on payment of usual charges, within a week. Petition dismissed.