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2008 DIGILAW 1137 (ALL)

MEGHNATH v. XITH A D J VARANASI

2008-05-23

DILIP GUPTA

body2008
DILIP GUPTA, J.-, J. ( 1 ) THESE two writ petitions have been filed by the defendant of SCC Suit No. 22 of 1992 that had been instituted by the plaintiff for eviction of the defendant from the suit property and for recovery of arrears of rent and damages. ( 2 ) WRIT Petition No. 19817 of 1995 has been filed tor setting aside the order dated 23rd September, 1994 passed by Judge Small Cause Courts, Varanasi by which the application filed by the defendant for deciding whether the Small Cause Courts had the jurisdiction to entertain the suit has been decided in favour of the plaintiff. The order dated 6th April. 1995 by which the revision for setting aside the aforesaid order was dismissed has also been challenged in this petition. ( 3 ) WRIT Petition No. 35203 of 2001 has been filed for setting aside the order dated 20th March, 1999 passed by Judge Small Cause Courts, Varanasi by which SCC Suit No. 22 of 1992 has been decreed and the defendant has been directed to handover the possession of the property in dispute to the plaintiff and also pay damages. The judgment and order dated 17th September, 2001 by which the revision filed for setting aside the aforesaid order was dismissed, has also been challenged in this petition. ( 4 ) THE records of the writ petitions indicate that SCC Suit No. 22 of 1992 had been instituted on 6th February, 1992 with the allegations that the plaintiff was the owner of House No. C-4/350, Mohalla-Sarai Gowardan, Varanasi and the land appurtenant thereto; that the defendant was a tenant of an open piece of land described at the foot of the plaint for the last 13-14 years on a rent of Rs. 60/- per month which was subsequently enhanced to Rs. 60/- per month which was subsequently enhanced to Rs. 150/- per month; that the defendant was doing business of selling coal from the land in dispute; that the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "act") was not applicable to the open piece of land let-out to the defendant; that the plaintiff, who was an employee in the Banaras Hindu University was to retire and he intended to do business from the open piece of land; that as the defendant had a piece of land in the city in the name of his wife he would not suffer if he was evicted from the land in dispute; that a notice dated 16/17. 12. 1991 sent under section 106 of the Transfer of Property Act for termination of the tenancy of the defendant was served upon the defendant and he was asked to vacate the land within 30 days and give possession of the land to the plaintiff, but the defendant did not vacate the land within the stipulated period. The suit was, accordingly filed for the relief mentioned above. At the end of the plaint, details of land were given as follows :- "part of open piece of land, whose boundaries are mentioned below and whose length is 50 ft. and width is 12 ft. which land is appurtenant to House No. C-4/350 Mohalla Sarai Gowardan, Varanasi and is bounded on: east - remaining appurtenant land of House No. C-4/350. West - Gali. North - Gali. South -remaining part of land appurtenant to House No. C-4/350. " ( 5 ) THE written statement was filed by the defendant and it was inter-alia pleaded that the Court had no jurisdiction to entertain the suit. The defendant also filed an application with a prayer that the question of jurisdiction may be decided first. ( 6 ) THE said application was decided by the Judge Small Cause Courts by the order dated 23rd September, 1994. The Court referred to the U. P, Amendment to Article 4 of the Second Schedule to the Provincial Small Cause Courts Act, 1987 (hereinafter referred to as the act) and observed that the relationship of lessor and lessee was admitted to the parties. The Court referred to the U. P, Amendment to Article 4 of the Second Schedule to the Provincial Small Cause Courts Act, 1987 (hereinafter referred to as the act) and observed that the relationship of lessor and lessee was admitted to the parties. The Court also observed that as the disputed land that had been let out to the defendant contained a tin shed and the defendant was doing his family business of selling coal from the open piece of land which was appurtenant to House No. C-4/350 the Court had the jurisdiction to take cognizance of the suit. ( 7 ) THE defendant filed a revision under section 25 of the Act contending therein that the suit had been filed in respect of an open piece of land and, therefore, the Small Causes Courts had no jurisdiction to entertain the suit. The Revisional Court observed that the sole question that was required to be considered was whether the disputed open piece of land was land appurtenant to House No. C-4/350 or it was an independent piece of land. In this connection it observe that the defendant had admitted in the written statement that the open piece of land that had been let-out to him was land appurtenant to House No. C-4/350 and since then the defendant had not filed any evidence to show that the open piece of land had been allotted any separate number by the Nagar Mahapalika then when the suit had been filed for eviction and damages, the Small Causes Courts had the jurisdiction to entertain the suit. The revision was accordingly dismissed by the judgment and order dated 6th April, 1995. ( 8 ) THESE two orders have been impugned in Writ Petition No. 19817 of 1995. The petition remained pending and was admitted only on 5th April, 1999, but before that the suit itself was decreed on 20th March, 1999. The revision filed for setting aside this order was dismissed on 17th September, 2001. These two orders dated 20th March, 1999 and 17th September, 2001 have been impugned in Writ Petition No. 35203 of 2001. ( 9 ) I have heard Sri A. K. Rai, learned Counsel appearing for petitioner in both the petitions and Sri J. H. Khan, learned Counsel appearing for the respondents. These two orders dated 20th March, 1999 and 17th September, 2001 have been impugned in Writ Petition No. 35203 of 2001. ( 9 ) I have heard Sri A. K. Rai, learned Counsel appearing for petitioner in both the petitions and Sri J. H. Khan, learned Counsel appearing for the respondents. ( 10 ) SRI A. K. Rai, learned Counsel for the petitioner submitted that in view of the provisions of section 15 of the Act and Article 4 substituted by U. P. Civil Laws (Amendment) Act, 1972 (hereinafter referred to as the amendment Act)for the purposes of the State of Uttar Pradesh, the suit by a lessor for eviction of a lessee for open piece of land cannot be taken cognizance of by the Courts of small Causes and, therefore, the orders dated 23rd September, 1994 and 6th april, 1995, impugned in Writ Petition Mo. 19817 of 1995 deserve to be set aside. He further submitted that in such circumstances Writ Petition No. 35203 of 2001 also deserves to be allowed since the Small Cause Courts had no jurisdiction to take cognizance of the suit. ( 11 ) SRI J. H. Khan, learned Counsel appearing for the respondents submitted that there is no informity in the findings recorded by the Courts below that the Small Cause Courts had the jurisdiction to take cognizance of the suit and in support of his contention he has placed reliance upon the decision of this Court in Kali Das v. Jagjiwan Das, 1986 (12) ALR 73. ( 12 ) I have carefully considered the submissions advanced by the learned Counsel for the parties and have examined the materials available on record. ( 13 ) IN order to appreciate the contentions advanced by learned Counsel for the parties, it would be necessary to reproduce the relevant provisions of the Act. Section 15 (1) of the Act is quoted below :- "15. (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 by which the suits is triable. " ( 14 ) BY virtue of this sub-section (1) of section 15 of the Act, the suits specified in the Second Schedule are excluded from the jurisdiction of the Court of small Causes. " ( 14 ) BY virtue of this sub-section (1) of section 15 of the Act, the suits specified in the Second Schedule are excluded from the jurisdiction of the Court of small Causes. In the Second Schedule, Article 4 for State of U. P. is in the following terms:- "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 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 or non-residential roofed structure, and includes any land (including any garden), garages and out houses, appurtenant to such building and also includes any fitting and fixtures affixed to the building for the more beneficial enjoyment thereof. " ( 15 ) ON a reading of Article 4, it is clear that a suit for possession of an immovable property or for the recovery of an interest in such property has been excluded from the jurisdiction of the Judge, Small Causes Court, but a suit by a lessor for the eviction of a lessee from a building, after the determination of the lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease, is cognizable by the Court of Small Causes. ( 16 ) THE explanation further defines as to what is a building. Building means a residential or a non-residential roofed structure and includes other things mentioned in the explanation. The position, therefore, is that where there is a suit by a lessor for the eviction of a lessee from a non-residential roofed structure then such a suit would be cognizable by a Judge, Small Causes Court. ( 17 ) IN the present case, as noticed hereinabove, the landlord had instituted SCC Suit No. 22 of 1992 with the specific averment that he was the owner and landlord of House No. C-350, Mohalla Sarai Gowardan, Varanasi as also the land appurtenant to that house and that the defendant was a tenant of a portion of the open piece of land appurtenant to the aforesaid house for the last 13-14 years. The relief claimed was for eviction of the defendant from the open piece of land and the details of the suit property mentioned at the foot of the plaint also described the land as an open piece of and measuring 50 ft. X 20 ft. The plaint does not mention that there was any roofed structure on the open piece of land and only mentions that the defendant was doing his business of selling coal from the open piece of land appurtenant to House No. C-350. ( 18 ) IN the written statement, the defendant made an averment that the Small Cause Courts had no jurisdiction to take cognizance of the suit, and the defendant also filed an application for first deciding this issue. ( 19 ) IT is, therefore, a case where the plaintiff asserted that an open piece of land had been let out to the defendant and relief was also claimed for eviction of the defendant from the open piece of land that had been let out. In view of Article 4 applicable to the State of Uttar Pradesh contained in the Second Schedule of the Act, the Small Causes Courts would have the jurisdiction in respect of a suit filed by the lessor for eviction of the lessee from the building after determination of the lease and building has been defined in the Explanation to mean a non-residential roofed structure. ( 20 ) IT has, therefore, to be seen whether a suit filed by a lessor for eviction of the lessee from an open piece of land is cognizable by the Small Causes Courts. ( 21 ) AT this stage, it needs to be mentioned that both the Courts below have committed an error in holding that the suit was cognizable by the Court of Small Cause Courts since the open piece of land which had been let out to the defendant was land appurtenant to House No. C-350. The said house had not been let out to the defendant and, therefore, the expression "building" contained in Article 4 of the Second Schedule of the Act which has been defined to mean residential or non-residential roofed structure including any land appurtenant to such building would not make the suit cognizable by Small Causes Courts. The said house had not been let out to the defendant and, therefore, the expression "building" contained in Article 4 of the Second Schedule of the Act which has been defined to mean residential or non-residential roofed structure including any land appurtenant to such building would not make the suit cognizable by Small Causes Courts. ( 22 ) THOUGH there is no pleading to the effect that a tin shed was in existence on the open piece of land in dispute, but the Small Causes Courts from certain photographs has concluded that a tin shed was in existence on the open piece of land in dispute. It was not even the case taken by the defendant in the written statement that an open piece of land alongwith a tin shed had been let out to the defendant. The Courts below, therefore, could not have decide the issue of jurisdiction taking into consideration the alleged tin shed on the open piece of land. ( 23 ) IN any view of the matter even if the tin shed had been raised by the defendant after the open piece of land had been let out to the defendant then too, the existence of the tin shed will be of no significance so far as the jurisdiction of the Court is concerned. In this connection reference may be made to the decision of this in Radhey Shyam v. District Judge, Allahabad and another, 1981 (7) ALR 509. where it was observed :- "from a reading of Article 4, it is clear that a suit for possession of immovable property or for the recovery of an interest in such property has been excepted and/as such, it is not cognizable by the Judge, Small Cause Court. The only suit cognizable would be a suit by a lessor for eviction of a lessee from the building after the determination of the case. Therefore, under article 4, only such suits are cognizable by the Judge, Small Cause Court where the building is the subject- matter of the lease and there is a determination of that lease of the said building. In the instant case, the allegations in the plaint are that the land had been let out and not the building. It has not been alleged that the petitioner is a lessee of the building. In the instant case, the allegations in the plaint are that the land had been let out and not the building. It has not been alleged that the petitioner is a lessee of the building. In fact, it is the case of the plaintiff in the suit that the building had been constructed by the petitioner with the permission of the plaintiff. It, therefore, cannot be held that the present suit is a suit by the lessor for eviction of a lessee from a building. In fact, it would be a suit for possession of the immovable property which would not lie in the Court of Small Causes Court. " ( 24 ) IN M/s Bharat Petroleum Corporation Ltd. v. Smt. Parvati Devi and others, 1998 (32) ALR 149. this Court also observed as follows :- "it is, therefore, clear from the allegations made in the plaint as well as from the reliefs sought in the plaint that it was a suit for eviction of the lessee and also the dealer occupant from the open land let out to defendant No. 1 by demolition of structures raised thereon. Permanent injunction was also sought that defendant No. 1 be restrained from supplying petroleum products to the dealer and the sale of petroleum products be also restrained. It is not a case where the landlady has let out any building to defendant No. 1. A suit for eviction from the open land will always be cognizable by the Civil Court and not by the Court of Small Causes. After amendment to section 15 of Provincial Small Cause Court Act only such suits for eviction shall be maintained in the Court of Small Causes where some building was let out by the landlord or landlady to the tenant and the tenancy was determined. In such cases, decree for eviction, recovery of arrears of rent, mesne profits etc. can be claimed from the Court of Small Causes and the Civil Court will have no jurisdiction to entertain such suits. . . . . . . . . " ( 25 ) IN Krishna Bhagwan v. District Judge, Bareilly and others, 1999 (36) ALR 366. this Court observed that a suit filed for eviction of the tenant from the open piece of land would not be cognizable by the Court of Small Causes and the suit can be filed in the regular Civil Court. . . . . " ( 25 ) IN Krishna Bhagwan v. District Judge, Bareilly and others, 1999 (36) ALR 366. this Court observed that a suit filed for eviction of the tenant from the open piece of land would not be cognizable by the Court of Small Causes and the suit can be filed in the regular Civil Court. ( 26 ) LEARNED Counsel for the respondent, however, placed reliance upon the decision of this Court in Kali Das (supra ). This decision does not help the respondents as the open piece of land with a roofed structure for commercial purposes had been let out. In the present case, as noticed hereinabove, the tin shed had not been let out to the defendants. ( 27 ) LEARNED Counsel for the respondents also place reliance upon the decision of this Court in Anwar Ahmad v. IVth Additional District Judge, Saharanpur, 1981 ARC 654. in support of his contention that khokha is wooden roofed structure. This decision also does not help the respondents. ( 28 ) IN view of the discussion made above, it is more than apparent that the Small Cause Courts did not have the jurisdiction to take cognizance of the suit. In such circumstances, Writ Petition No. 19817 of 1995 is allowed. The orders dated 23rd September, 1994 and 6th April, 1995 are set aside and it is held that the suit was not cognizable by the Judge Small Causes Courts. ( 29 ) ACCORDINGLY, Writ Petition No. 35203 of 2001 also deserves to be allowed and is allowed. The orders dated 20th March, 1999 and 17th September, 2001 are set aside. Petitions Allowed. .