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Uttarakhand High Court · body

2007 DIGILAW 234 (UTT)

Smt. Prem Gupta and others v. The Jal Nigam

2007-05-02

RAJESH TANDON

body2007
JUDGMENT Heard Sri B.P. Nautiyal, counsel for the revisionist and Sri D.S. Patni & Anil Dabral, counsel for the opposite party. 2. By the present civil revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887, the revisionist has prayed for setting aside the order dated 6th May, 1999 by which objections under Section 47 of the CPC have been allowed. 3. Briefly stated, the suit was filed being S.C.C. Suit NO.3 of 1996 by the plaintiff applicants praying for the recovery of rent and damages from the defendant. The said suit was decreed by the Judge Small Cause Court. During the execution proceedings by the decreeholder, the objection under Section 47 of the C.P.C. was filed stating therein that the decree is nullity and un-executable inasmuch as the decree passed by the Judge Small Cause Court is not executable as the Civil Court alone has jurisdiction to grant the decree in respect of recovery of rent and damages simpliciter and the suit was not cognizable by the Judge Small Cause Court. The Executing Court has held that the suit for recovery of rent and damages simpliciter is not maintainable on S.C.C. side. 4. Counsel for the applicant Sri B.P. Nautiyal has submitted that sub-clause (2) and (3) of Section 15 of the Provincial Small Cause Courts Act are wide enough to include the suits relating to recovery of rent and damages and the same has been rightly decreed by the Small Cause Court in view of Section 25 of the Bengal, Agra & Assam (UP. Amendment) Act 5. For ready perusal, provisions of Section 25(2) and (4) of the Bengal, Agra and Assam Civil Courts Act are quoted below: "(2) The [High Court may by notification in the official Gazette, confer upon any District Judge or Addition District Judge the jurisdiction of a Judge of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887, for the trial of all suits (irrespective of their value), by the 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, and may withdraw any jurisdiction so conferred. Explanation.- For the purposes of the sub-section, the expression 'building' has the same meaning as in Art. (4) In the Second Schedule to the said Act. [(4) Where the jurisdiction of a Judge of a Court of Small Causes is conferred upon any District Judge or Additional District Judge by notification under this section, then notwithstanding anything contained in Sec. 15 of the Provincial Small Cause Courts Act, 1887, all suits referred to in sub-section (2) shall be cognizable by Court of Small Causes." 6. As will appear from sub-clause (2), U.P. Amendment, or sub-clause (4) or the explanation, emphasis has been given to Section 15 of the Provincial Small Cause Courts Act. Section 15 of the Provincial Small Cause Courts is quoted below: "15. Cognizance of suits by Court of Small Causes.- (1) A Court of Small Clauses shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes. (2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes. (3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits or a civil nature of which the value does not exceed One thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order." 7. However, there was no difficulty in following either sub-clause 2 of the Bengal, Agra &Assam Civil Courts Act, 1887 of the U.P. Amendment or Sub-Clause (4) of the Bengal, Agra & Assam Civil Courts Act, 1887 with regard to suits for possession and recovery of interest being cognizable by the Judge Small Cause Courts, but the difficulty arises that sub clause 4 of Bengal, Agra & Assam Civil Courts Act provides that all the suits referred in sub-clause (2) shall be cognizable by the Small Cause Courts Act as contained in sub-clause 2 of Section 15 of the Provincial Small Cause Courts Act and schedule 2 of Article 4 in accordance with the amendment of Uttar Pradesh. It reads as under: "(4) a suit for the possession of immovable Property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation.- For the purposes of this Article, the expression building means a residential or non-residential roofed structure, and includes any land (including any garden)garages and out-houses, appurtenant to such building, and also Includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof." 8. As will appear from Schedule 2 of Article 4 of Section 15 of the Provincial Small Cause Courts Act, 1887 that it specifically prohibits the Judge Small Cause Court in trying the suit for compensation for the use and occupation of the building and from recovery from him simplicitor. 9. In Krishna Bhagwan v. District Judge, Bareilly 1999(2) ARC 248, it has been observed as under: "6. The Small Causes Courts have been established under the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as the Act). All suits of civil nature up to a limit specified in the Act are cognizable by the Court of Small Causes except those, which are mentioned in the IInd Schedule to the Act. This is so provided in the Section 15 of the Act. The State of Uttar Pradesh has amended Section 15, but it is not material for the purposes of this case. 7. Second Schedule deals with the suit excepted from cognizance of the Court of Small Causes. The relevant entry is item No.4. The State Government has amended it. According to it a suit by lessor for eviction of the lessee from a building after determination of lessee will lie in the Small Causes Courts. But the suit has to be in respect of a building. The word 'building' is also defined in the Explanation. It means residential or non-residential structure and includes land appurtenant to such building. It does not include open piece of land. Such a suit is not covered by the Entry 4 to the Schedule 2. Here the land leased out was open piece of land. The suit itself is for the eviction of open space of land. It means residential or non-residential structure and includes land appurtenant to such building. It does not include open piece of land. Such a suit is not covered by the Entry 4 to the Schedule 2. Here the land leased out was open piece of land. The suit itself is for the eviction of open space of land. It was not cognizable by the Court of Small Causes. The suit will lie in the Regular Civil Court. 8. The Bengal, Agra and Assam Civil Court Act, 1887 (the Civil Court Act for short) was enacted in order to consolidate and amend the law relating to Civil Courts. It extends to the State of Uttar Pradesh also. The Regular Civil Courts are constituted under this Act: their ordinary and special jurisdiction is specified therein. The regular Civil Court is defined under this Act and have their powers defined therein. The Code of Civil Procedure, 1908 (CPC for short) is applicable. The Courts of Small Causes are not covered by this Act. They are governed by the Provincial Small Causes Court Act, 1887. Section 10 of the Civil Court Act applies only Sections 15, 32, 37 and 39 to the Courts of Small Causes. The rest of the Civil Court Act does not apply to the Small Cause Court. The CPC which applies to the regular suit does not completely apply to the Courts of Small Causes. Some provisions are not applicable. This is clear from Order 1 of the CPC. First appeal does not lie against the decree of Court of Small Cause. Only a revision under Section 25 of the Act lies. 9. The Court of Small Causes as the name suggests was meant for the small causes. The legislature itself has provided what will be and what will not be small causes. This is what Section 15 of the Act is about. The second Schedule defines certain kind of cases. They according to the legislature at not small causes and have been excepted from the jurisdiction of the Court of small causes. The rest of cases are the cases are in the nature of small causes only if the valuation is less than the limit mentioned in Section 15 of the Act. The suit by lessor for eviction of lessee for open piece of land, according to legislature, is not a case of small cause. The rest of cases are the cases are in the nature of small causes only if the valuation is less than the limit mentioned in Section 15 of the Act. The suit by lessor for eviction of lessee for open piece of land, according to legislature, is not a case of small cause. The Court of Small Causes can not try it. In case it is so tried then there would be inherent lack of jurisdiction. 11. Here the suit was not cognizable by Small Cause Court. There is inherent lack of jurisdiction. The judgment and the decree dated 20-5-1992 is a nullity and it can be challenged at any time. Here though petitioner has not challenged it by filing a revision but has challenged it in this writ petition. He has prayed for quashing of this order. He has also taken a ground of jurisdiction in the revision against the order dated 12-2-1999. This is raised in the ground No. 9. But the revisional Court has negative it by one line in para-18 that the question of jurisdiction has been decided. The petition can not be rejected on this ground." 10. In Rahamatullah v. Mohd. Sharif 1997(1) ARC 508, it has been observed as under: "24. For considering the argument, which has been raised by learned Counsel for the appellant, it will be necessary to notice relevant provisions of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as (the PSCC Act). Section 15 of the PSCC Act relates to; the jurisdiction of the Courts of Small Causes. It reads as follows : "Cognizance of suits by Courts of Small Cause.- (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes. (2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being m force, all suits of a Civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes. (3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order." 25. (3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order." 25. A reading of this Section would show that clause (1) of Section 15 is in negative term. It prohibits the Court of Small Causes from taking cognizance of the suits which are specified in the Second Schedule except those which are excepted from the cognizance of the Civil Court in the Second Schedule. Second Schedule of the PSCC Act provides various nature of suits, which will be cognizable by Civil Court and will not be cognizable by Small Causes Court. 26. Item 4 of the Second Schedule reads as follows : "a suit for possession of immovable property or for the recovery of an interest in such property." 27. This item has been completely substituted by U.P. Civil Laws (Amendment) Act, 1972 (UP. No. 37 of 1972). Substituted item 4 of the Second Schedule of PSCC Act reads as follows : "(4) a suit for possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation.-For the purpose of this Article, the expression 'building means a residential roofed structure and includes any land (including any garden), garages and out-houses, appurtenant to such building and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof." 28. The substituted item 4 of Second Schedule of UPSCC Act excepts the suits which are filed for possession of immovable property or for the recovery of interest in such property from the cognizance of the Small Causes Court. It, however, reserves suits which are filed by lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease, to be tried exclusively by the Small Causes Court." 11. It, however, reserves suits which are filed by lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease, to be tried exclusively by the Small Causes Court." 11. Counsel for the revisionist has submitted that the objections with regard to jurisdiction was never taken by the judgment debtor during the proceedings of the case before the Judge Small Cause Court and there was no objection and as such suit was decreed. 12. It is well settled that the question of lack of jurisdiction can be raised at any stage. In Krishna Bhagwan If. District Judge, Bareilly (supra) relying upon various decisions, it has been observed as under: "10. A decree passed by the Court without jurisdiction over the subject matter or on any ground which goes to the root of jurisdiction or inherent jurisdiction is a nullity non est. Its Invalidity can be set up whenever it is sought to be enforced or is acted upon a foundation for a right even at the stage of execution or in collateral proceedings. It is ultra vires the powers of the Court. But if the Court has jurisdiction but there is defect In its exercise, not going to its root; like territorial. It can be corrected: waived." 13. In view of the above, the executing Court has rightly decided that the Judge Small Cause Court by virtue of powers under Section 15 of the Provincial Small Cause Courts Act read with Schedule 2 of Article 4 has no jurisdiction to try the suit for compensation as well as for recovery of the amount. 14. However, it is very surprising that the Judge Small Cause Court has assumed the jurisdiction without ascertaining the limits of the jurisdiction and he should have returned the plaint for presentation before the Civil Court. 15. In Sarjoo Prasad Vs. IInd Addl. District Judge AIR 1975 Allahabad Page 13, it has been observed as under: "27. The argument may be considered in regard to the constitutional validity of the new Article 4 aforesaid. Suits between landlords and tenants after the determination of lease are not expected to raise any question of title. 15. In Sarjoo Prasad Vs. IInd Addl. District Judge AIR 1975 Allahabad Page 13, it has been observed as under: "27. The argument may be considered in regard to the constitutional validity of the new Article 4 aforesaid. Suits between landlords and tenants after the determination of lease are not expected to raise any question of title. Even if a question of title is raised, the suit is liable to be transferred back to the regular civil court in view of Section 23 of the Small Cause Courts Act. Suits for ejectment of trespassers are, on the other hand, likely to raise issues relating to title." 16. Relying upon R.S.D. V. Finance Co. Pvt. Ltd. V. Shree Vallabh Glass Works Ltd. AIR 1993 SC 2094 in Laxmi Narain Namdev V. Dwarika Prasad 1998 (2) ARC Page 34, it has been held as under: "In support of this submission, he relied on a judgment of the Hon'ble Apex Court rendered in the case of R.S.D. v. Financial Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd. reported in A.I.R. 1993 Supreme Court 2094, wherein it has been held that when the Court arrives to the conclusion that it has no jurisdiction to try the suit, the only course to be adopted in such circumstances was to return the plaint for presentation to the proper Court and not to dismiss the suit. Mr. J.K. Krishan Tiwari, learned Counsel appearing for the respondents submitted that he has no objection if the plaint is returned to the plaintiff for presentation before the appropriate Court." 17. In view of the unfortunate circumstances, the decree, therefore, having been passed by the Judge Small Cause Court without jurisdiction cannot be executed. However, liberty is given to the applicant to avail the appropriate remedy in accordance with law. 18. Subject to aforesaid, revision is dismissed. No order as to costs.