Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 2993 (ALL)

Amit Kumar Gupta v. Shah Nawaj Naqvi and others

2011-12-23

SHABIHUL HASNAIN

body2011
Shabihul Hasnain, J.;- Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Mohd. Aslam Khan for appellant and Sri Prashant Chandra, learned Senior Advocate assisted by Sri Faisal Ahmad Khan for the respondents. This appeal has been filed under Section 96 of Civil Procedure Code against the judgment and order dated 12.10.2011 passed by Sri Liyaqat Ali, Additional District Judge, Court No. 1, District Lakhimpur Kheri. For proper adjudication of the case it is necessary that the facts of the case may be briefly narrated. Briefly stated the facts of the case are that SCC suit no. 1 of 2003 was filed by plaintiff Shahnawaz Naqvi as a next fried of Usman Naqvi, who was his son and died during the pendency of the suit, against the defendant Manoj Kumar Shukla- respondent no. 3 to this appeal, for eviction, realization of arrears of rent and damages, claiming himself to be owner and land lord of shop no. 8 situated in Purani Gallamandi, Lakhimpur, in which defendant Manoj Kumar Shukla, was a tenant since 1996. The defendant Manoj Kumar Shukla has taken the shop on rent for one year but after one year he did not vacate the shop and also defaulted for payment of rent. The suit was contested by the defendant by several grounds accepting the tenancy and claiming that that no arrears of rent is due against the defendant. The trial Court held that from the entire evidence and pleadings of the parties, it is fully proved that the defendant has been the tenant in disputed shop and plaintiff Usman Naqvi was the owner and landlord thereof, which fact has also been admitted by both the parties, and also that the disputed shop is not covered under the provisions of Act No. 13 of 1972. The suit of the plaintiff was decreed and the defendant Manoj Kumar Shukla- respondent no. 3 to this appeal was directed to vacate the disputed shop and hand over its possession to the plaintiff within thirty days. The defendant was also directed to pay arrears of rent and damages for use and occupation till vacation of the shop. Thereupon, an application was filed in S.C.C. execution case No.1 of 2011 by Amit Kumar- the appellant that till decision in the application under Order 21 rule 97,99 ands 101, execution proceedings may be stayed. The defendant was also directed to pay arrears of rent and damages for use and occupation till vacation of the shop. Thereupon, an application was filed in S.C.C. execution case No.1 of 2011 by Amit Kumar- the appellant that till decision in the application under Order 21 rule 97,99 ands 101, execution proceedings may be stayed. The decree-holder moved objection to this application and demanded for police help for getting vacated the shop. He has also filed an application that the possession of the shop be delivered through Amin of the Court with the help of the police. The application filed by Amit Kumar was rejected. But, the application of the decree holder was allowed and the Amin of the Court was directed to take police help for execution of the decree and getting the possession of the shop delivered to the decree holder. Amit Kumar appellant moved another application before the Court below alleging, inter-alia, himself to be the tenant of the shop in question. This application was contested by Shahnawaz Naqvi, who has filed objection to this application. He has also denied all the averments mentioned in the application. The application of Amit Kumar was rejected by the Court below on the ground that the applicant has not been able to establish the grounds taken in the application with regard to his tenancy of the shop in question. The applicant Amit Kumar has also not been able to produce any witness in his defence to prove that any amount in shape of advance rent was ever given to Shahnawaz Naqvi. The application of Amit Kumar was found baseless and it was found that it has been only filed with a view to delay the execution proceedings of the case. Accordingly, this application of Amit Kumar, appellant was also rejected by the trial court. Being aggrieved Amit Kumar came up in this first appeal. A preliminary objection has been raised by Sri Prashant Chandra, Senior Advocate that no appeal lies against the order passed by the Small Cause Court. It has been categorically stated that a revision under Section 25 of the Provincial Small Cause Court Act read with Order 21 Rule 103 of the Civil Procedure Code, rather than appeal under Section 96 read with Order 21, Rule 103 Civil Procedure Code is maintainable. It has been categorically stated that a revision under Section 25 of the Provincial Small Cause Court Act read with Order 21 Rule 103 of the Civil Procedure Code, rather than appeal under Section 96 read with Order 21, Rule 103 Civil Procedure Code is maintainable. Sri Prashant Chandra has relied upon a case decided on 9.4.2009 by Allahabad High Court reported in 2009(4) A.L.J. 225 Wahid vs. Mohd. Anwar in First Appeal No. 198/2008. In paragraph no. 17, 18 and 19 of the judgment His Lordship has observed as follows: "17. The effect of Order 21, Rule 103 is that such an order is to be treated as a decree. It does not provide for any appeal against the order. In case an appeal lies against such a decree only then appeal can be filed. Needless to say appeal is creature of a statute. It can only be filed only if there is provision for the same. 18. Section 17 of the PSCC Act provides that the CPC applies to the court of small causes subjected to the exclusion made by it or by the CPC. First appeal and second appeal against a decree are provided under Section 96 and under Section 100 of the CPC. Application of these sections to the court of small causes have been excluded by section 7 of the CPC and as such no appeal can be filed under these sections. 19. Section 25 of the PSCC Act provides for further proceeding against a decree and the orders passed by the court of small causes. It provides for a revision against the same. While discussing the 2nd point, I have already held that the impugned order is the order passed by the court of small causes: this order is to be treated as a decree by the court of small causes. If this is so, then appeal cannot be filed under section 96 read with order 21 Rule 103 of CPC. Only a revision can be filed under Section 25 of the PSCC Act read with Order 21, Rule 103 of the CPC." In paragraph no. 22 His Lordship has given the conclusion, which is as follows: "22. If this is so, then appeal cannot be filed under section 96 read with order 21 Rule 103 of CPC. Only a revision can be filed under Section 25 of the PSCC Act read with Order 21, Rule 103 of the CPC." In paragraph no. 22 His Lordship has given the conclusion, which is as follows: "22. My conclusions are as follows : (a) After amendment in the Provincial Small Cause Courts Act, not only a decree for ejectment can be passed by the court of small causes but such a decree can be executed by it. (b) In the present case, the impugned order has been passed by the court of small causes. (c) A revision, under section 25 of the Provincial Small Cause Courts Act read with Order 21, Rule 103 of the CPC, rather than appeal under section 96 read with Order 21, Rule 103 of the CPC is maintainable. In view of my conclusions, the appeal is not maintainable and is dismissed." I am in respectful agreement with the judgment of this court and I feel that the apPpeal against the impugned order dated 12.10.2011 is not maintainable and the appeal is thus, liable to be dismissed. At this juncture, Sri Mohd. Arif Khan, learned Senior Advocate has argued that this court has powers to treat the appeal as revision. He has relied upon the case law (2009) 5 Supreme Court Cases 162 Civil Appeal No. 846-47 of 2001 ( Nawab Shaqafath Ali Khan & others vs. Nawab Imdad Jah Bahadur & others). In paragraph 48 of the aforesaid judgment their Lordships have observed as follows : "48. If the High Court had the jurisdiction to entertain either an appeal or a revision application or a writ petition under Articles 226 and 227 of the Constitution of India, in a given case it, subject to fulfillment of other conditions, could even convert a revision application or a writ petition into an appeal or vice versa in exercise of its inherent power. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out." In the present case although the facts of the aforesaid judgments do not fit into the ambit of the present case yet for the satisfaction of the appellants I am inclined to treat this appeal as revision also. Indisputably, however, for the said purpose, an appropriate case for exercise of such jurisdiction must be made out." In the present case although the facts of the aforesaid judgments do not fit into the ambit of the present case yet for the satisfaction of the appellants I am inclined to treat this appeal as revision also. Revision has been defined in Section 115 of Civil Procedure Code which lays down the following law : 115. Revision.-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit : The appellant has further drawn the attention of the court towards paragraph no. 43 of the aforesaid judgment which lays down as under : "43. A civil revision application although must necessarily having regard to the terminologies used in Section 115 of the Code of Civil Procedure involve the question of jurisdiction, the question which would arise is as to what are the jurisdictional questions. A jurisdictional question may arise not only when a court acts wholly without jurisdiction but also in a case where jurisdictional errors are committed while exercising jurisdiction. There are various facets of "jurisdictional errors". Taking into consideration any irrelevant fact or non-consideration of a relevant fact would involve jurisdictional issue." Taking into consideration of any irrelevant facts or non-consideration of important fact, would involve jurisdictional issue. Let us examine the matter from this angle also. The main ground of attack by the appellant/revisionist is that the court below has refused to hear the appellant because he had failed to lead evidence and had not disclosed the names of witnesses before whom the shop was given to the appellants. It has been further argued that "points of determination" should have been formulated first and only then evidence could be lead by him. This aspect of the matter has been dealt with by the lower court in its order dated 12.10.2011. It has been further argued that "points of determination" should have been formulated first and only then evidence could be lead by him. This aspect of the matter has been dealt with by the lower court in its order dated 12.10.2011. The case of the appellant is that he has given Rs. 2,00,000/- as ' Pagdi' and Rs. 9,000/- as advance rent for six months on 30.4.2011 to Shah Nawaj Naqvi in presence of witnesses. Interestingly, neither the names of witnesses have been given by him nor any place has been mentioned. It has been categorical case of the respondents that Shah Nawaj Naqvi did not know the appellant Amit Kumar at all. In such a situation, it was but natural that name of the witnesses should have been preferred by the appellant. I feel that the reason given by Judge, Small Causes Court is quite correct. The appellants only wanted to delay the proceedings and linger on his eviction and for this purpose taking a plea that point of determination should have been made earlier is only frivolous. It is well settled that point of determination will be made only when there is some prima-facie case of dispute. The appellant can not force the court to make the point of determination on the basis of unreasonable, bald and vague allegations. Two lakhs rupees as 'Pagdi', Rs. 9,000/- as advance rent is not such an amount which was given to Shah Nawaj Naqvi in a clandestine manner. It has been alleged that it was given in the presence of witnesses, hence the name of witnesses should have been in the application itself. The finding of the lower court that no evidence was lead is absolutely correct. I am of the firm opinion that there was no jurisdictional error by the Judge, Small Causes Court and thus, the order under challenge, has rightly been passed by the court below. In view of the aforesaid discussions, this appeal ( now treated as revision) is liable to be dismissed. The appeal / revision is dismissed.