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2015 DIGILAW 3358 (ALL)

Vijai Laxmi Saxena v. Indra Bahadur @ Pappu Singh

2015-10-27

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal, J. 1. I have heard Shri N.N. Jaiswal, learned counsel for the revisionists and Shri Mohd. Arif Khan, learned Senior Advocate assisted by Shri Mohd. Aslam Khan and Indrajeet Shukla on behalf of the opposite party. 2. The short question involved in this revision is as to whether the court of small causes while invoking the power under Section 23 of the Provincial Small Causes Court Act, can dismiss the suit. 3. The brief facts giving rise to this revision are that the revisionist filed a suit for recovery of arrears of rent and ejectment against the opposite party on 21.5.2012. The revisionists claimed that the actual owner and landlord of the house in question was Smt. Chandrawati Devi who executed a will in favour of the revisionists and after the death of Smt. Chandrawati Devi on 18.6.2011 they became owners and landlords of the house in question. It was also pleaded that Smt. Chandrawati Devi in her life time had let out the house in question to the opposite party for a period of 11 months. Since the opposite party failed to pay the arrears of rent, a notice was issued to him terminating his tenancy as provided under Section 106 of Transfer of Property Act and thereafter the suit was filed for recovery of arrears of rent and ejectment. 4. In the aforesaid suit the opposite party did not file any written statement for a considerable long time and prayed that he may be permitted to deposit the rent in the court. In the meantime one Vinay Kumar Singh moved an application under Order 1 Rule 10 CPC for his impleadment in the suit on the ground that Smt. Chandrawati Devi had executed a will in his favour on 15.6.2011 after cancelling the earlier will dated 15.9.2010, which was executed in favour of the revisionists. It was also stated in the said application that after the expiry of initial lease, the opposite party had executed a new lease agreement in his favour and he had been receiving the rent from the opposite party. After the aforesaid application for impleadment was filed by Vinay Kumar Singh, the opposite party filed his written statement disputing the title of the revisionists and stating that the revisionists were not his landlord and Shri Vinay Kumar Singh is the actual landlord. After the aforesaid application for impleadment was filed by Vinay Kumar Singh, the opposite party filed his written statement disputing the title of the revisionists and stating that the revisionists were not his landlord and Shri Vinay Kumar Singh is the actual landlord. The learned SCC Court after hearing the parties, rejected the application of Vinay Kumar Singh for impleadment. The order rejecting the application was passed on 10.3.2014. Feeling aggrieved by the order rejecting the application for impleadment, Vinay Kumar Singh preferred a revision before this Court being SCC Revision Defective No. 47 of 2014, which was also dismissed on 4.8.2014, directing the court below to expedite the proceedings of the suit filed by the revisionists and conclude the same within a period of six months from the date of production of a certified copy of the order. 5. A perusal of the record reveals that the revisionists had earlier approached this Court by way of filing Writ Petition No. 5970 of 2013 for expediting the disposal of the application of Vinay Kumar Singh moved under Order 1 Rule 10 CPC, which was disposed of on 16.9.2013 directing the court below to decide the application within a period of six months. After the order dated 4.8.2014 was passed, the opposite party moved an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that the suit was barred under Section 23 of the Provincial Small Causes Court Act. This application was allowed by the court below vide order dated 20.12.2014, whereby the suit of the revisionists was dismissed. It is the aforesaid order dated 20.12.2014, which has been impugned in this revision. 6. Shri Vinay Kumar Singh has also moved an application for his impleadment in the present revision as one of the opposite parties but since the matter with regard to his impleadment has attained finality in view of the judgement dated 4.8.2014 passed earlier in his revision, therefore, his prayer for impleadment in the present proceedings cannot be accepted. 7. Before proceeding further with the case it appears necessary that Section 23 of the Provincial Small Causes Courts Act is examined. The aforesaid section is reproduced as under: - "23. 7. Before proceeding further with the case it appears necessary that Section 23 of the Provincial Small Causes Courts Act is examined. The aforesaid section is reproduced as under: - "23. Return of plaints in suits involving questions of title- (1)Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any state of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. (2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction." 8. A perusal of the aforesaid provision reveals that the small causes court is empowered to return the plaint for presentation to a proper court if it finds that the relief claimed by the plaintiff depends upon the proof or disproof of his title to immovable property which the court cannot finally determine. The question which arises for consideration in this revision is as to whether the circumstances of this case, the court below was justified in dismissing the suit on the ground that the question of title was involved. 9. The learned counsel for the revisionists has submitted that after Vinay Kumar Singh started claiming the title of the house in question through a will allegedly executed by Smt. Chandrawati Devi, the revisionists had no other option except to approach the competent civil court for declaring the will allegedly executed in favoaur of Vinay Kumar Singh as void. They have therefore filed a suit before the civil court which is Regular Suit No. 808 of 2013 and the same is still pending consideration. They have therefore filed a suit before the civil court which is Regular Suit No. 808 of 2013 and the same is still pending consideration. It has been argued by the learned counsel for the revisionists that it is not necessary in every case where the question of title is involved, to return the plaint to the plaintiff for presentation to the proper court. Although the court of small causes is not competent to finally decide the question of title but it can incidentally go into question of title. It has also been submitted by the learned counsel that if the court finds that the dispute with regard to the title of plaintiff is raised by the defendant only in order to make out a defence for return of plaint, the small causes court is competent enough to go into question of title and decide the same. It is only when the court finds that the question of title is complicated which the court cannot decide and further that the grant of relief depends upon proof or disproof of the title, the court can pass an order for return of plaint. In the instant case the conduct of the opposite party is such that he in order to prolong the litigation and defeat the claim of the revisionists has introduced Vinay Kumar Singh as claimant of the house in question, although the alleged will was never executed by Smt. Chandrawati Devi in his favour. The revisionists are the daughter and the son-in-law of late Smt. Chandrawati Devi while Vinay Kumar Singh is not even distantly related to her and therefore, the execution of will in his favour debarring the revisionists, is not only improbable but his also against the natural human conduct. 10. The learned cousnel has referred to the judgement rendered b y this Court in SCC Revision Defective No. 47 of 2014, which was passed on a revision filed by Vinay Kumar Singh against the rejection of his application for impleadment. This Court while dismissing the revision has made a clear observation that the issue relating to genuineness of the will executed allegedly either in favour of the revisionists or Vinay Kumar Singh, is not the subject matter of the suit pending in the court below. This Court while dismissing the revision has made a clear observation that the issue relating to genuineness of the will executed allegedly either in favour of the revisionists or Vinay Kumar Singh, is not the subject matter of the suit pending in the court below. Even if the small causes court records a finding, the same will not bind either the civil court or Vinay Kumar Singh because the question of title is to be decided by the Competent Civil Court and not by the court of small causes, which is only empowered to examine as to whether their exists any relationship of landlord and tenant between the parties. The learned counsel for the revisionists has further argued that the counsel who represented Vinay Kumar Singh in the earlier revision and the counsel for the opposite party in the present revision, is the same which primafacie indicates that the opposite party and Vinay Kumar Singh are in collusion and both of them have conspired to defeat the claim of the revisionists. It has been argued by the learned counsel for the revisionists that in view of the observation made by this Court in SCC Revision Defective No. 47 of 2014, the small causes court was under legal obligation to comply with the judgement of this Court but in utter disobedience and ignoring the observation made by this Court, the learned court below passed an order dismissing the suit on the ground that the title suit between the revisionists and a third person Vinay Kumar Singh was pending in a civil court. The learned Small Causes Court ought to have decided the case on merit in view of the observation made by this Court in his judgement dated 4.8.2014, instead of dismissing the suit. 11. Shri Mohd. Arif Khan, learned Senior Advocate appearing on behalf of opposite party has on the other hand submitted that although under section 23 of Small Causes Courts Act, the court has power to return the plaint for presentation to the to proper court and there is no express power to dismiss the suit but in the peculiar circumstances of this case, the learned court below has rightly passed an order dismissing the suit because the title suit between the revisionists and Vinay Kumar Singh was already pending before the competent Civil Court. The learned court below had therefore no other option except to dismiss the suit because even if the court had passed an order for return of the plaint, the revisionists had to suitably amend the plaint after its presentation to the Civil Court and since there was already a title suit pending, there was no occasion for the court below to have returned the plaint to be presented before the Civil Court. He has further argued that the present revisionists had never been their landlords and the opposite party never paid rent to them. The opposite party was inducted as tenant by the original owner Smt. Chandrawati Devi, who executed a will in favoaur of Vinay Kumar Singh after cancelling the will previously executed in favour of the revisionists and the opposite party entered into fresh agreement with Vinay Kumar Singh and also started paying rent to him, therefore, in the absence of any evidence that the revisionists are the landlords, the learned trial court rightly passed an order dismissing the suit of the revisionists . It has further been submitted that if after the decision of the civil suit it is found that the revisionists are the owners, it would be open for them to file another suit for eviction of opposite party but till the decision of Civil court with regard to the title, the small causes court had no jurisdiction to proceed with the case, because it had no jurisdiction to go into the complicated question of title. In support of his arguments, reliance has been placed upon the judgment reported in 2013(1) ARC page 891 Smt. Radha Devi Vs. Special Judge Ghazipur and others, in which it has been held that where the small causes court finds that it cannot proceed unless the question of title is proved or disproved, it has no jurisdiction to proceed with the case and the proper course for it is to return the plaint to be presented before the competent court. 12. Reliance has also been placed upon the judgement reported in 2009(2) ARC page 829; Kamlesh Chandra Gupta Vs. 12. Reliance has also been placed upon the judgement reported in 2009(2) ARC page 829; Kamlesh Chandra Gupta Vs. Subhash Chandra Gupta, in this case also it has been held that where the validity of a will is to be examined, the proper course for the court of small causes is to return the plaint instead of proceeding with the case because the court of small causes has no jurisdiction to decide complicated question of title. 13. Having heard learned counsel for the parties and having gone through the various orders passed by this Court as well as the order impugned in this revision, one thing which emerges out is that the revisionists being the legal heirs of the original owner Smt. Chandrawati Devi have claimed themselves to be the owners and landlords on the basis of a will executed by Smt. Chandrawati Devi. It is not in dispute that there was no lease agreement between the revisionists and the opposite party. The contention of the revisionists is that after the death of Smt. Chandrawati Devi they stepped into her shoes and became owners and landlords. The opposite party on the other hand has taken defence that he never paid rent to the revisionists and after Vinay Kumar Singh claimed himself to be the owner and landlord on the basis of a subsequent will, he entered into fresh agreement of lease with him and also started paying rent to him. It is also not disputed that the revisionists themselves filed a suit before the civil court for cancellation of will allegedly executed by Smt. Chandrawati Devi in favour of Vinay Kumar Singh. The said suit is still pending. It is also an admitted fact that Vinay Kumar Singh tried himself to get impleaded in the said suit by moving an application for impleadment but the same was rejected and a revision preferred by him before this Court was also dismissed observing that the issue relating to the genuineness of the will was not subject matter of the suit pending before the small causes court. On the basis of the aforesaid observation this Court directed the court below to expedite the proceedings of the suit filed by the revisionists and conclude the same within six months but instead of complying with the aforesaid order, the learned court below while entertaining the application under Order 7 Rule 11 CPC moved by the opposite party, passed the impugned order and dismissed the suit. 14. The law with regard to return of plaint has held by the various courts is, that the Small Causes Court shall return the plaint to be presented before the Competent Civil Court if it comes to the conclusion that there is a complicated question of title which it has no jurisdiction to decide. However, it is also a settled legal proposition that the court of small causes has jurisdiction to decide the tile incidentally. It is not obligatory on the part of the court of small causes to return the plaint in every case where the question of title is raised by the tenant. It is only when the complicated question of title is involved and the grant of relief by the plaintiff depends upon proof or disproof of his title, only then the court should pass an order for return of the plaint. The learned court below ignoring the aforesaid settled legal proposition and also ignoring the order passed by this Court on 4.8.2014, passed an order dismissing the suit which is not the scope of Section 23 of the Provincial Small Causes Courts Act. A perusal of the impugned order shows that the suit has been dismissed only on the ground that the title suit is already pending in a Civil Court but as observed earlier, Section 23 nowhere empowers the court to dismiss the suit. So far as the provision of Order 7 Rule 11 CPC is concerned, the court has power to reject the plaint only on certain grounds. None of the grounds mentioned in Rule 11 of Order 7 CPC are attracted in the present case. 15. So far as the provision of Order 7 Rule 11 CPC is concerned, the court has power to reject the plaint only on certain grounds. None of the grounds mentioned in Rule 11 of Order 7 CPC are attracted in the present case. 15. In view of the discussions made herein-above, I am of the view that the order passed by the court below is not according to the law and has been passed ignoring the settled legal proposition of law and the observations made by this Court in the order dated 4.8.2014, and as such the impugned order is liable to be set aside and the revision deserves to be allowed. 16. The revision is allowed and the order dated 20.12.2014 is set aside. It is directed that the learned court below shall consider afresh the application of the opposite party for return/rejection of plaint in the light of the observations made in this judgement as well as in view of the settled legal proposition. The application of the opposite party shall be considered and disposed of expeditiously in accordance with the law, preferably within a period of one month from the date a certified copy of this order is produced before it. 17. If the revisionists have deposited any amount in compliance of the order dated 17.4.2015, passed by this Court, the same shall be refunded to them on presentation of proper application.