Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 1982 (ALL)

Rama Devi v. Vivek Gupta

2014-07-08

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal, J. – Service of notice upon the defendant respondent is deemed to be sufficient in view of the office report on record but no one has put in appearance and filed any reply to the petition. In view of above, the court has no option but to proceed ex parte against the respondent. 2. I have heard Sri R.K. Pandey, learned counsel for the petitioner and have perused the record. 3. The petition is directed against the judgment and order dated 6.5.2006 passed by the Small Causes Court directing for the return of the plaint under Section 23 of the Provincial Small Causes Court Act, 1987 (hereinafter referred to as the Act) to the civil court and the order dated 19.8.08 passed by the revisional court affirming the same. 4. The courts below have directed for the return of the plaint to the civil court on the ground that a question of title is involved in the suit. 5. The submission of learned counsel for the petitioner is that no question of title is involved and that the relationship of landlord and tenant between the parties is admitted. Therefore, the courts below have erred in passing the impugned orders. 6. The dispute is regarding a shop situate over plot No.456 village Said Nagli, Tehsil Hasanpur, District Jyotiba Phoole Nagar. The said plot was the property of Ram Saran Das, the father of the petitioner. On the said plot exists the shop in question. The father of the petitioner transferred the plot in favour of one Bhuvnesh and by a Will bequeathed the shop in favour of the petitioner. On the basis of said Will petitioner claims herself to be the owner and the landlord of the shop. 7. The petitioner instituted suit for arrears of rent and eviction of the respondent from the said shop. In the said suit the respondent instead of filing a written statement moved application under Section 23 of the Act contending that the suit involves a question of title and therefore, the plaint be returned to the regular civil court. It was contended that the respondent had never paid rent to the petitioner and therefore, there is no relationship of landlord and tenant between the parties. 8. The petitioner in order to prove that the respondent had been paying rent to the petitioner, filed rent receipts. It was contended that the respondent had never paid rent to the petitioner and therefore, there is no relationship of landlord and tenant between the parties. 8. The petitioner in order to prove that the respondent had been paying rent to the petitioner, filed rent receipts. The court of first instance without considering the said rent receipts simply for the reason that the land was transferred by the father of the petitioner to Bhuvnesh whereas the shop was bequeathed to the petitioner came to the conclusion that it involves a title dispute and until and unless petitioner establishes her title over it, the suit cannot proceed in the court of small causes. Accordingly, the plaint was directed to be returned. 9. The bare reading of the order of the trial court dated 10.8.2006 and that of the revisional court demonstrates that the courts have not taken into consideration the rent receipts produced by the petitioner which prima facie indicates that the respondent was paying rent to the petitioner and as such have accepted her to be the landlord. 10. In a suit for arrears of rent and eviction court of small causes has to decide the matter on the basis of the existence of the relationship of landlord and tenant between the parties. It is not supposed to come into the intricate question of title. 11. The very fact that the shop was bequeathed to the petitioner itself establishes that she is the owner of the same may be that the land belongs to the other persons. The tenancy is in respect of the shop and not the land. 12. Thus, prima facie even the question of title does not seems to be involved. 13. It has been settled vide Budhmal Vs. Mahavir Prasad AIR 1988 SC 1772 that Section 23 of the Act contemplates return of the plaint at the discretion of the court in a very clear case of involvement of title in order to do complete justice between the parties. It does not make it obligatory upon the court to return the plaint as soon as a question of title is raised by the tenant in a suit for eviction. It does not make it obligatory upon the court to return the plaint as soon as a question of title is raised by the tenant in a suit for eviction. In a suit for eviction the dispute is decided on the basis of the relationship of landlord and tenant and even the question of title could also be gone into incidentally but any finding regarding title recorded therein would not operate as res judicata in any suit brought about in respect of the title. 14. In view of the aforesaid facts and circumstances, I am of the view that the application filed by the respondent under Section 23 of the Act requires re-adjudication by the court of first instance in the light of the observation made by me above. 15. Accordingly, impugned orders dated 6.5.2006 and 19.8.2008 are quashed. 16. The writ petition is allowed and the matter is remanded to the court of first instance to re-decide the application under Section 23 of the Act afresh as directed above. The court below will proceed to decide it as expeditiously as possible preferably within a period of four months from the date of production of the certified copy of this order before proceedings with the suit on merits if necessary.