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2013 DIGILAW 1627 (ALL)

Saraswati Devi v. Tabassusum Gazala

2013-05-30

PANKAJ MITHAL

body2013
Pankaj Mithal,J. In this writ petition filed by the defendant/tenant challenge has been made to the order dated 9.10.2012 passed by the Additional Judge, Small Cause Court, Allahabad rejecting her application under Section 23 of the Provincial Small Cause Courts Act, 1887 (in short "the Act") and the revisional order thereto dated 12.2.2013 passed by the Additional District Judge, Allahabad. 2. The dispute is regarding bungalow No.11, Kanpur Road, Allahabad. Plaintiff/respondent is claiming ownership over it by virtue of free hold deed dated 29.3.2004. On the other hand, the defendant/petitioner claims that there is a dispute of ownership and certain other persons, namely successors of K.B.Garg are claiming ownership over the same in connection with which civil suits between the parties are pending. Even the free hold deed dated 29.3.2004 is the subject matter of challenge in one of the suits. 3. The courts below have refused to return the plaint for presentation to the regular civil court as the petitioner accepts herself to be the tenant and the above free hold deed dated 29.3.2004 is a document of title evidencing the ownership of the plaintiff/respondent. 4. I have heard Sri Saurabh Raj Srivastava, learned counsel for the petitioner and Sri Ashish Kumar Singh, learned counsel for the respondent. 5. It has been argued that there is a serious dispute regarding the title of the plaintiff/respondent over the above property which is pending consideration in Original Suit No.274 of 2004 (Smt. Ravi Bala Garg and others Vs. Smt. Tabassum Gazala) and there is also an injunction suit No.388 of 2003 (Smt. Ravi Bala Garg and another Vs. Saiyyad Javed Haider and others). Secondly, the defendant/petitioner in view of the aforesaid title suit pending is depositing the rent under Section 30(2) of the U.P. Act No.13 of 1972. The acceptance of her application by the Court amounts to acknowledging the title dispute between the parties relating to the above property. 6. A glance at the application 28-Ga of the defendant/petitioner reveals that it has been drafted in a very casual and cursory manner. It only states that there is no privity of relationship of landlord and tenant between the parties and, therefore, the Small Causes Court has no jurisdiction and the suit is barred by Section 23 of the Act. 6. A glance at the application 28-Ga of the defendant/petitioner reveals that it has been drafted in a very casual and cursory manner. It only states that there is no privity of relationship of landlord and tenant between the parties and, therefore, the Small Causes Court has no jurisdiction and the suit is barred by Section 23 of the Act. It does not contain any detail on the basis of which the title of the plaintiff/respondent is said to be in doubt or disputed. 7. The grounds urged herein or in the courts below have not been taken in the application. Therefore, it is difficult to order the return of the plaint on the basis of averments made in the application. 8. Notwithstanding the above, in none of the suits pending in the civil court, any person other than the plaintiff/respondent has so far been held to be the owner/entitle to the above property. No order has been passed in any suit staying the operation of the free hold deed dated 29.3.2004. The injunction order, if any, is restraining the parties from alienating the property and it is on the basis of such interim injunction that it is being contended that the free hold deed could not have been executed or that some other persons had a preferential right of getting the sale deed in their favour on the basis of some agreement and the decree of the specific performance but the fact remains that till date no other persons has been recognised as the owner of the said property by any court of law and, at the same time, free hold deed in favour of the plaintiff/respondent has not been declared to be illegal, null, void. It has not been cancelled or revoked. 9. In view of the free hold deed dated 29.3.2004, the plaintiff/respondent, as on date, is the owner of the property and she is entitle to receive rent as there is no material to indicate that any other person has been authorised to receive rent on her behalf. As such, she is also the landlord entitle to receive the rent. 10. In the above situation, when the defendant/revisionist accepts herself to be the tenant and the plaintiff/respondent is the owner and landlord, the relationship of landlord and tenant between the parties stands duly established. 11. In Smt. Girja Shanker and others Vs. As such, she is also the landlord entitle to receive the rent. 10. In the above situation, when the defendant/revisionist accepts herself to be the tenant and the plaintiff/respondent is the owner and landlord, the relationship of landlord and tenant between the parties stands duly established. 11. In Smt. Girja Shanker and others Vs. Krishna Kumar Jaiswal, 2011 (85) ALR 116 it has been observed that mere denial of relationship of tenant and landlord is not sufficient to oust jurisdiction of the court constituted under the Act. 12. A similar view has been expressed in Ram Sevak Vs. Pramod Kumar, 2011 (1) ARC 199 and it has been observed that the tenant by mere denial of relationship of landlord and tenant cannot avoid eviction proceedings before the Small Cause Court. 13. In the present suit, the rights of the parties on the basis of the above relationship alone is to be decided and there is no issue to title between the plaintiff/respondent and the defendant/revisionist. Therefore, the question of title is foreign to the instant suit. 14. Section 23 of the Act only provides that when the right of the plaintiff in a suit before the Court of Small Causes depends upon proof or disproof of title to an immovable property, the Court may return the plaint for presentation to a Court having jurisdiction to determine title. 15. The above provision is discretionary in nature and it is not obligatory upon the court to order return of plaint in every case. 16. A three Judges Bench of the Supreme Court in Budhu Mal Vs. Mahabir Prasad, AIR 1988 SC 1772 clearly laid down that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint when the question of title is raised by the tenant in a suit for eviction and the question of title can incidentally be gone into but any finding recorded by a Judge, Small Causes in this behalf would not be res judicata in a suit based on title. However, in some cases discretion to return the plaint may be exercised to do complete justice between the parties. 17. In Shamim Akhtar Vs. Iqbal Ahmad, AIR 2002 SC 1 it was again reiterated that the power vested under Section 23 of the Act in the Court is discretionary. However, in some cases discretion to return the plaint may be exercised to do complete justice between the parties. 17. In Shamim Akhtar Vs. Iqbal Ahmad, AIR 2002 SC 1 it was again reiterated that the power vested under Section 23 of the Act in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff before the Small Causes Court cannot be granted without determination of the question of title to the immovable property. 18. The Apex Court in Nirmazl Jeet Singh Hoon Vs. Irtiza Hussain and others, 2010 (3) ARC 632 has clearly held that finding, if any, on the issue of title recorded by the Small Cause Court would not operate as res judicata and ultimately the issue of title, if any, has to be adjudicated upon by the competent civil court. 19. The legal position as set out above, in short, is that the power under Section 23 of the Act for return of the plaint is discretionary in nature and the Judge, Small Cause Court is competent to decide the issue of title, if any, incidentally and if any finding is recorded thereon that would not operate as res judicata in a title suit and the issue of title would be subject to the decision of the competent civil court. 20. In Bans Bahadur Singh (Dr.) Vs. Brijesh Kumar Singh and others, 2009 (2) ARC 246 the plaint of the suit filed by the petitioner claiming himself to be the landlord of a house was ordered to be returned under Section 23 of the Act by the trial court on the objection of the tenant that there is a dispute of title between the petitioner and some other persons. The order returning the plaint was upheld in revision. The matter came up before the High Court. The Court held that as the suit for cancellation of the sale deed which exists in favour of the petitioner has not been decided and it has not been adjudged illegal and void or is otherwise cancelled and as there is no document conferring ownership right in favour of any other person, the order to return the plaint was not proper. Accordingly, the orders of the courts below were quashed and the application of the tenant under Section 23 of the Act was rejected. 21. Accordingly, the orders of the courts below were quashed and the application of the tenant under Section 23 of the Act was rejected. 21. The facts of the present case falls squarely within the ambit of the above case and, therefore, applying the ratio laid down therein, I am of the view that the courts below have not erred in law in rejecting the application of the petitioner filed under Section 23 of the Act. 22. In another case decided by this Court reported in 2006 (1) ARC 221 : 2006(1) AWC 819, Ram Chandra Lal Vs. VIth Additional District Judge, Varanasi and others, it has been held that there may not be necessity to return the plaint under Section 23 of the Act, inasmuch as the landlord cannot be denied the recovery of rent and ejectment of the tenant merely on account of non-disposal of title suit before the civil court. 23. In one another case, in a situation like this, a learned single Judge of this Court, in AIR 2006 (NOC) 1390 (All.) : 2006 (3) ARC 131 : 2006 (5) ALJ 323, Ram Deo Vs. Ram Naresh and another held that a suit for eviction of a tenant instituted on the ground of default in payment of rent is one based contract of tenancy triable by Small Cause Court and even if the question of title is incidentally involved therein the Judge, Small Cause Court is not bound to return the plaint but every decision therein shall be subject to the decision of the civil court dealing with the title and the plaint need not be ordered to be returned. 24. The above two decisions of this Court, in addition to the principles that have emerged from the decision of the Supreme Court, as referred to above, lays down that during the pendency of the title suit in the Civil Court the owner and land lord cannot be denied the recovery of rent and ejectment of the tenant and that the decision of the Judge, Small Cause Court in a suit for arrears of rent and eviction would be subject to the decision of the Civil Court dealing with the title. 25. 25. The relief claimed by the plaintiff/respondent in the present suit is of arrears of rent/eviction on the basis of juristic relationship between the parties and, therefore, it cannot be said that the relief cannot be granted by the Small Causes Court without getting the title decided. 26. The submission that the Court under Section 30(2) of U.P. Act No.13 of 1972 has permitted the defendant/petitioner to deposit rent in Court does not mean that the court has accepted that there is a title dispute regarding the ownership of the plaintiff/respondent. It only denotes that she has been permitted to deposit rent in Court as their appears to be a reasonable doubt in the mind of the defendant/petitioner as to whom she should pay the rent. The said permission only establishes the bonafide about the doubt in the mind of the defendant-respondent as to the person to whom rent is payable and is not material for establishing the title dispute. 27. The petitioner tenant in effect by moving application under Section 23 of the Act and in filing this petition wants avoid proceedings against her taking advantage of a fight between plaintiff/respondent and some other parties in relation to title over the suit property, like a cat in adage which this Court would not permit in exercise of writ jurisdiction. 28. It has to be remembered that the scope of judicial review in matters where the trial court is vested with discretionary jurisdiction is very narrow and limited and generally requires no interference unless the discretion exercised is shown to be palpably erroneous in law or arbitrary. There is nothing of such kind which may under the facts and circumstances of the case, would make the order of the court below arbitrary or erroneous justifying judicial review in exercise of extra ordinary writ jurisdiction. 29. In view of the aforesaid facts and circumstances, I do not find any palpable error on the part of the court below in exercising the discretion in refusing to return the plaint in exercise of the power under Section 23 of the Act. 30. The writ petition is accordingly dismissed with the observation the the decree passed in the suit would be subject to the decision of the title suit, if any, pending against the plaintiff/respondent. ________________