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2013 DIGILAW 2952 (ALL)

Narendra Kumar Varshney v. Madan Mohan Sharma

2013-12-05

MANOJ MISRA

body2013
Manoj Misra,J. Heard Sri Sumit Daga, learned counsel for the defendant-revisionist, and Sri V.K. Agarwal for the plaintiff-respondent. 2. By the instant revision application, the revisionist has challenged the order dated 22.10.2013 passed by the Additional District Judge, Court No.2, Hathras in S.C.C. Suit No.12 of 2006 by which his application, under Section 23 of the Provincial Small Cause Courts Act, 1887, for return of the plaint to a competent civil court, has been rejected. 3. A perusal of the record reveals that S.C.C. Suit No.12 of 2006 was instituted by the plaintiff-respondent against the defendant-revisionist for arrears of rent and eviction claiming himself to be the Manager of Dharamshala Anjam Netram Ramswaroop. There is no dispute that the defendant-revisionist was the tenant of the said Dharamshala. The dispute is with regards to the claim of the plaintiff-respondent that he is the Manager of the Dharamshala. The defendant-revisionist placed reliance on a decree passed in Original Suit No.48 of 1983 so as to show that the plaintiff-respondent was not the Manager of the Dharamshala. On that basis, it has been pleaded that there is no landlord tenant relationship between the plaintiff and the defendant and, as such, the plaint was required to be returned, under Section 23 of the Provincial Small Cause Courts Act. 4. In rebuttal to the plea taken by the defendant-revisionist, the plaintiff-respondent produced a decree passed in Original Suit No.201 of 2005 which declared him to be the Manager of the concerned Dharamshala. The decree passed in Original Suit No.201 of 2005 was passed against the persons in whom the defendant-revisionist set up title for managing the property. 5. The court below considering the existence of decree passed in Original Suit No.201 of 2005 took the view that as the Small Cause Court has power to incidentally decide question of title while determining the relationship of landlord and tenant and as there was a decree passed by the civil court declaring the plaintiff as the Manager of the Dharamshala, therefore, there was no justification to return the plaint for presentation before a regular civil court. 6. Challenging the order passed by the court below, Sri Sumit Daga, learned counsel for the defendant-revisionist, submitted that the decree passed in Original Suit No.201 of 2005 is a subject matter of appeal before this Court, which is pending as First Appeal No.213 of 2010. 6. Challenging the order passed by the court below, Sri Sumit Daga, learned counsel for the defendant-revisionist, submitted that the decree passed in Original Suit No.201 of 2005 is a subject matter of appeal before this Court, which is pending as First Appeal No.213 of 2010. It has been submitted that in view of the fact that the matter is still sub-judice before this Court, the court below ought to have returned the plaint for decision by a regular civil court. 7. Sri V.K. Agarwal, learned counsel for the plaintiff-respondent, submitted that earlier an application for impleadment was sought by the other claimant to the property in the S.C.C. Suit No.12 of 2006, which was rejected by the court below and against which a revision was preferred before this Court, which was dismissed by order 18.08.2010 passed in Civil Revision No.369 of 2010 wherein it was held that the suit based on a contract of tenancy can be determined by the Court of Judge Small Cause. 8. Having considered the rival submissions of the learned counsel for the parties, this Court is of the view that as a decree has been passed by a civil court? in favour of the plaintiff-respondent, which is still subsisting, and the question of title can be incidentally looked into, while determining the relationship of landlord and tenant, by the Court of Judge Small Cause, I do not find any legal infirmity in the order passed by the court below by rejecting the application to return the plaint to a regular civil court. 9. In view of the above, the revision is dismissed. 10. Needless to say that after final decision of the S.C.C. suit, it would be open to the revisionist to raise all such pleas in a revision against the decree, if any, passed against him. ________________