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2015 DIGILAW 2778 (ALL)

Hisamul Islam Siddiqui v. Mohd. Javed Barki

2015-09-04

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Devendra Kumar Upadhyaya, J. Heard Shri Mushtaq Ahmad Siddiqui, learned counsel for the revision-applicants and Shri Madhur Kant Srivastava, learned counsel for the opposite party. 2. A suit for arrears of rent and ejectment has been instituted by the plaintiff-opposite party against the defendants-revisionists in the Court of Judge, Small Causes, Lucknow. In the aforesaid suit, an application for rejection of the plaint under Order 7 Rule 11 of the CPC was filed by the defendants on the ground that the plaintiff-opposite party was not lessor of the property and further that the plaintiff had purchased the premises in question on 17.08.2009 and there being no relationship of lessor-lessee between the plaintiff and defendants, the suit before the Small Cause Courts Act, 1887 is barred in view of the provisions contained in Section 15 of the Provincial Small Cause Courts Act, 1887 read with amended Entry 4, as is applicable in the State of U.P., in the Second Schedule appended to the said Act. 3. It has been submitted by learned counsel for the revision-applicants that in absence of any such relationship of lessor-lessee between the plaintiff and the defendants, the suit is barred to be taken cognizance of by the Judge Small Causes. 4. Rebutting the arguments submitted by the learned counsel for the revision-applicants, Shri Madhur Kant Srivastava, learned counsel for the opposite party has submitted that in view of the law laid down by this Court in the case of Jhurai Lal vs. 5th Additional District Judge, Jhansi and others, reported in [ 1999 (17) LCD 1187 : 1999 (2) ARC 277 ] and in the case of Rama Shanker Singh vs. Ratnesh Jaiswal and another, reported in [ 2013 (31) LCD 1567 ], the suit is maintainable before the Judge, Small Causes Court and hence, there is no illegality in the order dated 07.05.2015 passed by the learned Judge, Small Causes Court, Lucknow and the revision is liable to be dismissed. 5. Section 15 of the Provincial Small Cause Courts Act, 1887 describes the jurisdiction of the Courts of Small Causes, according to which, a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes. 5. Section 15 of the Provincial Small Cause Courts Act, 1887 describes the jurisdiction of the Courts of Small Causes, according to which, a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes. Entry 4 in the Second Schedule is as follow: - "(4) a suit for the possession of immovable property or for the recovery of an interest in such property." Clause 4 has been substituted by way of amendment in its application in the State of U.P. which is as follows: "(4) a suit for the possession of immoveable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation-For the purposes of this Article, the expression 'building' means a residential or non-residential roofed structure, and includes any land (including any garden), garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof." 6. Thus, the Judge, Small Cause Court can assume the jurisdiction to try a suit only in case relationship of lessor-lessee exists. This Court in the case of Jhurai Lal (supra) has clearly held that the landlord is entitled to the rent and in case of transfer by a landlord, the new owner/landlord is entitled to the rent from the date of transfer. This Court in the aforesaid case has come to the aforesaid conclusion after considering the provisions of Section 8 and Section 109 of the Transfer of Property Act. 7. At this juncture, Shri M.A. Siddiqui, learned counsel for the revision-applicants has submitted that the transfer of the premises in question on 17.08.2015 by one Smt. Rihana Parveen in favour of Mohd. Javed Barki (plaintiff-opposite party) is not denied. He further states that plaintiff-opposite party may be the landlord but he is not the lessor. Such a fine distinction for the purposes of jurisdiction of the Judge, Small Causes, which has been sought to be drawn by learned counsel appearing for the revision-applicants, in my considered opinion, cannot be accepted. Javed Barki (plaintiff-opposite party) is not denied. He further states that plaintiff-opposite party may be the landlord but he is not the lessor. Such a fine distinction for the purposes of jurisdiction of the Judge, Small Causes, which has been sought to be drawn by learned counsel appearing for the revision-applicants, in my considered opinion, cannot be accepted. The answer to the arguments made by Shri Siddiqui can be found in para 5 of the judgment of this Court in the case of Jhurai Lal (supra) wherein it has clearly been held that in case of transfer by a landlord, the new owner/landlord is entitled to the rent from the date of transfer. Section 8 of the Transfer of Property Act, clearly provides that unless a different intention is expressed or it is necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. The right of lessee would be included to have been transferred in terms of the provisions contained in Section 8 of the Transfer of Property Act. Learned counsel for the revision-applicants has failed to point out any different intention, either expressed or implied, that the plaintiff-opposite party would not the right of the lessee passed on him, once the premises in question was sold by Smt. Rihana Parveen to the plaintiff-opposite party. The aforesaid view finds support from the law laid down by this Court in the case of Rama Shanker Singh (supra). 8. Further the learned Judge, Small Causes has only rejected the application by means of the impugned order dated 07.05.2015 by observing therein that the Court has to give a finding on relationship of the tenant and landlord while deciding the matter. 9. Accordingly, in view of the aforesaid, I do not find any illegality in the impugned order dated 07.05.2015, passed by the Judge, Small Cause Court, Lucknow. The writ petition is, thus, dismissed. 10. It is further directed that the learned court below shall expedite the proceedings of the suit and consider all the pleas which may be available to the parties.