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2010 DIGILAW 3317 (ALL)

MOHD. RASHID v. INCHARGE, DISTRICT JUDGE, JHANSI

2010-10-26

RAKESH TIWARI

body2010
JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard Sri Sudhir Shandilya, counsel for the petitioner and perused the record. Counsel for the respondent is not present even in the revised list. 2. Respondent No. 3 filed S.C.C. Case No. 31 of 2001 in the Court of Small Causes, Jhansi for eviction of the petitioner from a shop situated in house No. 252/1 (new number 986), C.P. Mission Compound, Jhansi and payment of arrears of rent and damages. The suit was contested by the petitioner by filing his written statement wherein he denied the title of respondent No. 3- Smt. Suneeta Gupta wife of Sri Anil Kumar Gupta on the ground that shop is situated over plot No. 2533 whose owner is his mother which was purchased by his mother through a sale deed dated 16.5.1991. 3. The petitioner moved an application under Section 23 of Provincial Small Cause Courts Act, 1987, praying for return of the plaint for being presented before the appropriate Court having jurisdiction to determine the title as according to him intricate question of title was involved in the case. This application was objected to by respondent No. 3 inter alia that SCC suit was maintainable. 4. The Judge, Small causes Court, Jhansi rejected the application of the petitioner on the ground that the parties have not closed their evidence, hence petitioner’s prayer for return of the plaint cannot be decided at this stage. The Court concluded that whether plaint is to be returned or not, can only be decided after recording of entire evidence, from which it may draw conclusion as to whether the SCC Court has jurisdiction or not. Hence, it was ordered that this aspect would be considered after conclusion of evidence. In passing the orders aforesaid, the Court below placed reliance upon paragraph No. 12 of the decision rendered by the Apex Court in Shamim Akhtar v. Iqbal Ahmad and another, 2000(2) ARC 770, which reads thus : “12. The trial Court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff appellant under Section 23 of the Small Causes Court Act. The trial Court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff appellant under Section 23 of the Small Causes Court Act. Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in a Court of small cause depends upon the proof or dis-proof 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 to a Court having jurisdiction to determine the title. The power vested under sub Section (1) in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Causes Court depends upon the proof or disproof of a title to the immovable property and the relief sought cannot be granted without determination of the question. In the present case, as noted earlier, the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted respondent No. 1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed the trial Court at the first instance had accepted the plaintiff’s case holding , inter alia that she had got the property by a registered deed of gift from Smt. Khairnnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who indisputedly was the original owner of the property. The question of title of the plaintiff to the suit house could be considered by the Small Causes Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent Court. In such circumstances, it would not be said that for the purpose of granting the relief claimed by the plaintiff, it was absolutely necessary for the Small Causes Court to determine finally the title to the property. The tenant respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23 (1) of the Small Causes Court Act.” 5. The tenant respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23 (1) of the Small Causes Court Act.” 5. According to the judgment aforesaid cited by the petitioner, the Court of Small Causes can consider the question of title for a limited extent for the purpose of determining relationship of landlord and tenant. Moreover, the question of ownership is different from the question of relationship of landlord and tenant. “Tenant” has been defined in Section 3(a) in relation to a building, as a person by whom its rent is payable whereas “Landlord” has been defined in Section 3(j), in relation to a building, as a person to whom its rent is or if the building were let would be, payable and includes the agent or attorney of such person. Therefore, an owner can also be a landlord but the landlord may or may not be owner of a building. The petitioner has claimed that his landlord is Mrs. Shailviza, mother of the petitioner. Whether she is the landlady and owner of the shop is the question to be determined. If it is found by the Small Causes Court that the shop is situated on plot No. 2533 of which owner is mother of the petitioner, then the plaint may be returned for presentation before the competent Court but in case it is found that the shop is not situated on plot No. 2533 but the petitioner is in fact the tenant of respondent No. 3, the suit will be cognizable by the Small Causes Court. 6. The contention of the counsel for petitioner that under Section 23 of Provincial Small Cause Courts Act, 1987, the Court at any stage of the proceedings may return the plaint for presentation before the Court having jurisdiction to determine the title, has to be looked in the context it has been used in Section 23. According to Section 23, the Small causes Court is not competent to decide the suit in which question of title is to be determined finally. According to Section 23, the Small causes Court is not competent to decide the suit in which question of title is to be determined finally. However, the Small causes Court is competent to decide the question involving title of the parties to immovable property to a limited extent i.e. if such a question arises only incidentally in the suit but the decision may not be final. It has been held in Hakim Mohd. v. Hari Ram, AIR 1926 All 344, that where the suit is based on a relief which can be taken in the suit and it can also be granted by a Court of Small causes, then incidental proof of title in the suit over some immovable property will not oust the jurisdiction of the Court of small causes before which the said suit is pending. 7. It can therefore safely be said that Section 23 of Provincial Small Cause Courts Act, 1987 does not oust totally the jurisdiction of the Small Causes Court in suits involving the question of title to immovable property. Section 23 only provides a procedure for a Court of small causes to follow it where in its discretion it cannot decide a suit with finality in order to avoid further litigation. 8. In the instant case, the Court of small causes at this stage has left the question open as to whether it has jurisdiction or not on the ground that same can be determined only after conclusion of the evidence by the parties. It is apparent from the order impugned that question of return of plaint is open, therefore, it cannot be said by the petitioner at this stage that he is aggrieved by the aforesaid order. The question as to whether jurisdiction falls with the Small Causes Court or not, cannot be finally determined as it requires proof. Hence, there is no illegality committed by the Small causes Court in relying upon the decision in Shamim Akhtar case (supra). For all the reasons stated above, there is no illegality in the impugned order and the writ petition appears to be premature at this stage and it is accordingly dismissed. No order as to costs. —————