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2014 DIGILAW 2365 (ALL)

Adesh Kumar Tyagi v. Om Prakash Sharma

2014-08-06

PANKAJ MITHAL

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JUDGMENT Pankaj Mithal,J. Heard Sri Rajesh Gupta, counsel for the petitioner and Sri Utpal Chatterjee, counsel for the respondent. 2. This writ petition has been preferred against the order dated 19.3.2008 passed by the Additional District Judge exercising powers of the Small Cause Courts in S.C.C. Suit No.16 of 2003 Om Prakash Vs. Adesh. 3. The court below by the said order has refused to entertain the objection of the petitioner regarding valuation of the suit. 4. Sri Utpal Chatterjee, learned counsel for the respondent has taken a preliminary objection that the above order is revisable under Section 25 of the Provincial Small Cause Courts Act and, therefore, the writ petition is liable to be dismissed on the ground of availability of alternative remedy. 5. Section 25 of the Provincial Small Cause Courts Act provides for revision of the decrees and orders of Courts of Small Causes. It not only provides for filing of the revision against the final order but also against the order passed in any case by the Court of Small Cause. 6. In view of the above, though the above order appears to be revisable under Section 25 of the Provincial Small Cause Courts Act but still I decline to throw out the petition on the ground of alternate remedy first for the reason the writ petition has been entertained in 2008 and is pending ever since then after exchange of necessary affidavits and secondly the revision would also come before the single Judge of this Court and the powers exercised in revision or this petition would be the same. 7. It appears that the respondent had filed the S.C.C. suit for arrears of rent and had also claimed damages. The damages have been claimed at a higher rate then the agreed rate of rent. 8. The submission of learned counsel for the petitioner is that the respondent deliberately claimed damages at a higher rate to increase the valuation so as to exclude the jurisdiction of Civil Judge (Junior Division/Senior Division) exercising powers of Small Cause Court and to place it before the Additional District Judge in exercise of powers as Judge Small Cause Court. 9. The respondent has valued the suit according to relief claimed i.e. arrears of rent and damages. It is well settled vide SC & FB Cases 1987 178 Ram Narain Prasad Vs. 9. The respondent has valued the suit according to relief claimed i.e. arrears of rent and damages. It is well settled vide SC & FB Cases 1987 178 Ram Narain Prasad Vs. Atul Chandra Mishra that for the purposes of valuation only the plaint allegations have to be considered. Accordingly, if the the respondent has claimed damages at a higher rate than agreed one the suit has to be valued according to the relief so claimed. 10. Sri Rajesh Gupta has placed reliance upon a decision Union of India and others v. Smt. Urmila Rani Gaur and others 1983 (2) ARC 304. In the said case, His Lordship of this Court has held that the damages should be awarded at the rate of rent and not higher than that. 11. The above proposition is for awarding damages and not in connection with the valuation of the suit. It is the choice of the plaintiff to claim damages at higher rate, may be in law he is not allowed to get the same. Therefore, if the respondent has claimed damages at a higher rate the suit is to be valued on the basis of the relief so claimed, and not on the basis what is likely to be awarded. 12. This apart, the impugned order causes no prejudice to the petitioner. The right of the petitioner to file revision against the final decision of the suit would not be impaired as he would have the right to file the revision before this Court. In this way, a higher forum would be available to the petitioner in place of a lower one which would not affect the right of the petitioner. 13. Moreover, the order impugned is an interlocutory order which can be taken care of after the decision of the suit, in revision filed against the final decision, if necessary. 14. In view of the above, I find no merit in the writ petition. It is dismissed with the direction to the Small Cause Court to proceed and decide the suit expeditiously, in accordance with law. 15. The writ petition is dismissed.