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2015 DIGILAW 2286 (ALL)

A. K. Tandon v. S. P. Rastogi

2015-08-07

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard learned counsel for the parties. 2. The prayer is for setting aside the order dated 19.5.2015 passed in original suit no.798 of 1997 as also the order passed in revision dated 10.7.2015 arising out of the original suit no. 798 of 1997. 3. Short controversy raised by the petitioner is that the original suit no. 798 of 1997(S.P. Rastogi and another Vs. A.K. Tandon) is not cognizable by Civil court in view of section 15 of the Provincial Small Cause Courts Act, 1887(hereinafter referred to as the Act). Admittedly the suit filed by the lessors for the eviction of the petitioner who is lessee of the disputed property. The contention is that land was taken on rent by the petitioner and godown has been constructed over the land as per permission granted in the lease deed dated 1.4.1982. 4. Learned counsel for the petitioner has invited attention of the court to section 15 of the Act which provides that a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule. The Second Schedule further provides that the suit for possession of any immovable property is not cognizable by the Small Cause Court except that in relation to suits by the lessor for the eviction of a lessee from abuilding after the determination of his lease. 5. Reliance has been placed in judgment of Govardhan Goyal and others Vs.Rishi Raj Singhal 2013 (1) A.R.C. 673 to submits that the suit for eviction of the tenant in respect of the property where initially land alone was leased out but over which a building has been constructed with the permission of the landlord, would only be cognizable by the Court of Small Cause. 6. Learned counsel for the respondent on the other hand submits that the application under Order VII Rule 11 C.P.C. was rejected by the court below wherein it has opined that the issue of jurisdiction is a mixed question of law and fact and is to be decided after the evidence are led by the parties. In view of this no infirmity can be found in the order impugned. 7. It is apparent from the record that the issue of jurisdiction has not been decided by the court below. In view of this no infirmity can be found in the order impugned. 7. It is apparent from the record that the issue of jurisdiction has not been decided by the court below. The order further reflects that court below has refused to reject the plaint the reason that the dispute was raised by the plaintiff regrading nature of the suit property.It is settled law that the question of jurisdiction is a mixed question of law and fact and has to be decided after evidence are led by the parties.However it is also well settled that before proceeding with the suit in case a dispute is raised with regard to the jurisdiction of the court it has to be decided first . 8. In view of the above though this court is not inclined to interfere in the orders dated 19.5.2015 and 10.7.2015, however, it is directed that the court below shall decide the question of jurisdiction first by allowing the parties to lead their evidence and then proceed on merit with the suit if found maintainable. It is further reflected from the record that the suit is pending since 1997. Both the counsel for the parties had agreed to the extent that the documentary evidences will be led by the parties and only oral examination was going on. The court below is,therefore, directed to conclude the evidence of both the parties within a period of one month by fixing short dates. The issue raised with regard to the jurisdiction of the court below shall be decided soon thereafter preferably within a period of two months from the date a certified copy of this order is produced before it. 9. It is made clear that no unnecessary adjournment would be granted to either of the parties. In case of any unnecessary adjournment is sought by either of the parties, heavy cost would be imposed by the court below upon the party concerned while granting the adjournment. 10. With the above directions, the writ petition is disposed of.