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2015 DIGILAW 3707 (ALL)

Ishaq @ Gama Ahmad v. Champa Devi

2015-11-27

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal, J. Both the aforesaid SCC Revisions arise out of the same SCC Suit No.10 of 2007 and are also between the same parties, therefore, for the sake of convenience both the SCC Revisions are being taken up together and are being decided by a common judgment. 2. SCC Revision No.117 of 2015 has been preferred by the revisionist-tenant against the order dated 19.09.2015, whereby his application for amendment of the written statement has been rejected. SCC Revision No.101 of 2015 has also been preferred by the revisionist-tenant against the order dated 09.09.2015, whereby his application C-37 moved under Section 23 of Provincial Small Cause Courts Act for return of the plaint, has been dismissed. 3. I have heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohd. Aslam Khan on behalf of the revisionist and Sri Rajeev Kumar Tripathi appearing on behalf of the contesting opposite party-landlord. 4. Since both the revisions arise out of different orders, therefore, both the matters are being dealt with separately. 5. The facts of the case in brief are that opposite party Smt. Champa Devi filed a suit for arrears of rent and ejectment against the revisionist-tenant inter alia on the ground that the revisionist tenant was in arrears of rent and in spite of having received a notice of demand, he did not pay the arrears of rent and as such his tenancy stood terminated and he was liable to be evicted by means of a decree of ejectment. The revisionist-tenant filed his written statement and also moved an application for return of the plaint under Section 23 of the Provincial Small Cause Court Acts. The revisionist-tenant in his written statement denied his status as tenant and pleaded that the opposite party-landlady was not the owner of the premises in question and the revisionist-tenant has never been her tenant at any point of time. He denied having any arrears of rent due from him. It appears that the opposite party-landlady filed replication to the written statement filed by the revisionist-tenant and stated therein that the land upon which the disputed shop exits, was purchased by her husband on 02.02.1957. After filing of the replication by the opposite party-landlady, an application for amendment of the written statement was moved by the revisionist-tenant seeking addition of certain new legal pleas. After filing of the replication by the opposite party-landlady, an application for amendment of the written statement was moved by the revisionist-tenant seeking addition of certain new legal pleas. By means of the amendment the revisionist-tenant wanted to add a new para taking defence to the effect that the sale-deed filed by the opposite party landlady dated 02.02.1957 was in respect of a Bhumidhari land, therefore, the Court of Small Causes have no jurisdiction to entertain a suit in respect of a Bhumidhari land. The revisionist-tenant also sought a new ground to his defence that no declaration has yet been made as required under section 143 of the U.P.Z.A. & L.R. Act and as such in the absence of such declaration, the disputed land would be deemed as Bhumidhari land and for this reason also the suit was not maintainable. The suit was, therefore, barred by Section 156 of U.P.Z.A. & L.R.Act and was liable to be dismissed under Order 7 Rule 11 CPC. 6. The opposite party land lady filed a detailed objection against the amendment application and it was stated by her that the evidence of the parties has already commenced and no reason has been shown as to why these amendments were not sought by the revisionist tenant earlier. The Hon'ble High Court has directed to dispose of the S.C.C. Suit within a period of six months and the revisionist tenant wants to keep the matter pending on one pretext or the other. The opposite party land lady is a widow woman having no issue and taking advantage of this fact the revisionist tenant wants to grab the property in dispute. 7. The learned court below by means of the impugned order dated 19.09.2015 dismissed the amendment application on the ground that the trial has already commenced and there is a direction of the Hon'ble High Court to decide the case expeditiously, therefore, the amendment application has been moved only to delay the proceedings of this case and on this ground the learned court below found that the application was not liable to be allowed. 8. 8. Mohd Arif Khan, learned Senior Advocate has asserted that although the provision of Order 6 Rule 17 CPC has been amended and it has been provided that no application for amendment shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial but the law with regard to the amendment of the plaint as well as for amendment of the written statement, is slightly different. The first part of Rule 17 of Order 6 CPC clarifies that the court has power to amend the pleadings at any stage of the proceedings. However, the proviso appended to Rule 17 provides that the amendment shall not be allowed unless the party seeking amendment satisfies the court that he could not raise the matter at the earlier stage of the suit. It has further been submitted by the learned Senior Advocate that the pleas which the revisionist tenant wants to add in his written statement, are purely legal pleas and have nothing to do with the facts of the case. It is a settled law that legal pleas can be raised at any stage of the proceedings. 9. In support of his contention, he has relied upon a decision of a case of this Court reported in 2010 (28) LCD Page 582 Smt. Shahjahan vs. District Judge. In this case, this Court has relied upon a decision of the Hon'ble Apex Court reported in 2002 (2) SCC Page 2 Prem Baxi and others vs. Dharamdev and others. In this case, the Hon'ble Supreme Court has held that the amendment of the pleading does not amount to decision on the issue involved. It only serves advance notice to the other side as to the plea which a party was taking up. While relying upon another decision of Hon'ble Supreme Court reported in 2006 SCC Page 498, it was held that the law with regard to amendment of a plaint and amendment of a written statement is not governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. 10. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. 10. In view of the aforesaid decision on the subject the submission of the learned Senior Advocate is that since the principle governing amendment of written statement is slightly different from that of the plaint, therefore, the court should adopt more liberal approach while considering the amendment of written statement. Moreover the amendments sought by the revisionist tenant are purely legal in nature and the same are not going to prejudice the case of the opposite party land lady who is claiming herself to be the owner and land lady of the premises in question. 11. In the light of the aforesaid principles of law laid down by the Hon'ble Supreme Court and this Court and also looking to the nature of the amendment of the pleadings sought to be made in the written statement, I find that the proposed amendment is legal in nature which does not cause any prejudice to the opposite party land lady. The amendment application cannot be refused only on the ground that the matter is old and there is a direction of this Court to decide the case expeditiously because the courts are expected to do justice between the parties and not to go into the technicalities. 12. In view of the above, the S.C.C. Revision No.117 of 2015 deserved to be allowed and the order dated 19.09.2015 rejecting the amendment application of the revisionist tenant is set aside. Consequently amendment application Kha 61 seeking amendment of additional written statement is allowed. The revisionist tenant is permitted to carry out the correction in the additional written statement within a period of two weeks from the date of this judgment. 13. Now, I take up S.C.C. Revision No.101 of 2015 which has been filed by the revisionist tenant against the order rejecting his application for return of the plaint. It has been submitted by the learned Senior Advocate Mohd. 13. Now, I take up S.C.C. Revision No.101 of 2015 which has been filed by the revisionist tenant against the order rejecting his application for return of the plaint. It has been submitted by the learned Senior Advocate Mohd. Arif Khan that the revisionist tenant has claimed himself to be the owner and landlord of the shop in question and since the court of small cause is not competent to decide the complicated question of title, therefore, under Section 23 of the Provincial of Small Cause Court Act, the plaint should be returned to the opposite party land lady to be presented before the competent court. 14. The opposite party land lady filed written objections against the aforesaid application of the revisionist tenant and stated that she was the owner and land lady of the shop in question. The revisionist tenant had moved the application for return of the plaint only in order to prolong the proceedings of the case. The opposite party land lady was an aged lady having no source of income while the revisionist tenant wanted to grab the property by taking false pleas. However, the learned court below by means of the order dated 19.09.2015 rejected the application of the revisionist tenant on the ground that the revisionist tenant had failed to give any cogent evidence with regard to his ownership and there was a direction of Hon'ble High Court to decide the case expeditiously. 15. The law with regard to return of plaint is contained in Section 23 of the Provincial Small Court Cause Acts which reads 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." 16. A perusal of the provision of Section 23 makes it clear that the Court of Small Causes may return the plaint for presentation to the competent court only when it finds that the right of the party claiming relief and the relief claimed by him depends upon the proof or disproof of a title to immovable property or other title which the court cannot determine. 17. Sri Mohd. Arif Khan, learned Senior Advocate has argued that it is not a case where the revisionist tenant has simply denied the status of the opposite party landlady but in the case in hand the revisionist tenant has claimed himself to be the owner and the landlord of the shop in question. Moreover, as per her own case the husband of the opposite party landlady purchased the Bhumidhari land and claims that the construction was raised over such Bhumidhari land. It is a settled law that unless a declaration is made under section 143 of the U.P.Z.A. & L.R. Act, the user of the land will not be changed and the Bhumidhari land shall be deemed to be Bhumidhari land unless the declaration as required under section 143 is made. Since no such declaration has been made, therefore, the land upon which the disputed shop has been constructed, shall be deemed to be a Bhumidhari Land and the Court of Small Causes will have no jurisdiction to entertain any suit in respect of such property. 18. Reliance has been placed upon a decision reported in 1999 (1) ARC page 582. In this case it has been held that the object of section 23 is to meet cases in which the court is satisfied that the question is so intricate that it should not be decided summarily and the plaint should be returned for presentation in the proper court. 19. In this case it has been held that the object of section 23 is to meet cases in which the court is satisfied that the question is so intricate that it should not be decided summarily and the plaint should be returned for presentation in the proper court. 19. Reliance has also been placed upon a decision of this Court reported in 2011 (3) ARC page 161 Musmat Bhagmani Devi Vs. 8th Addl. District Judge and another. In this case also this Court has held that where serious dispute of title has arisen, the Court of Small Causes should not proceed with the matter but ought to return the plaint for presentation before a court competent to decide such question. 20. Another pronouncement relied upon by the revisionist tenant is reported in 2013 (1) ARC page 891 Radha Devi Vs. Special Judge Ghazipur, in this case also it has been held that where a question of title arises between the parties and the grant of relief to the plaintiff depends upon proof or disproof of his title, the court ought to have returned the plaint. 21. Sri Rajeev Kumar Tripathi learned counsel appearing on behalf of the opposite party landlady has, on the other hand, submitted that in the cases of arrears of rent and ejectment it has become a tendency of the tenants to deny the title of their landlord and then make a prayer for return of the plaint and the object to do so is only to harass the landlord and prolong the proceeding of the case. In order to check this practice, it has been held in a series of decisions of the Hon'ble Supreme Court as well as by this Court that in every case where the tenant denies the title of his landlord, it is not necessary for the court to return the plaint. If the Court of Small Causes can decide as to who the owner and landlord on the basis of material on record, then the court instead of passing an order for return of the plaint, may very well record a finding that the plaintiff is the owner and landlord and may proceed with the case. 22. In support of his arguments, he has placed reliance upon a Supreme court decision reported in 2000 SCC page 123 Shamim Akhtar Vs. 22. In support of his arguments, he has placed reliance upon a Supreme court decision reported in 2000 SCC page 123 Shamim Akhtar Vs. Iqbal Ahmad and another, in this case the Hon'ble Supreme Court has held that by mere denial of title of the landlord, the tenant can not avoid eviction proceeding. The power to return plaint in suits involving questions of title is vested under section 23 of the Provincial Small Cause Court Act and is discretionary. This power is to be exercised only where relief claimed by plaintiff depends on proof or disproof of his title. In an eviction suit under the Rent Control Act the question of title can be considered by the court as an incidental question and final determination of title should be left open to the decision of the competent court. 23. Reliance has also been placed upon a decision reported in 2013 (31) LCD page 676, Niyamatullah and others Vs. Ist Additional District Judge, Bahraich and others. In this case a Co-ordinate Bench of this Court has held that the factum of ownership is foreign to the scope of Judge Small Causes. Raising the dispute regarding ownership of the building and the tenancy and pleading it to be an intricate question of title, is the creation of the ground of a mischievous tenant to prolong the possession in the disputed premises. In such cases, the order refusing to return the plaint is wholly justified. The suit between landlord and tenant is based upon their relationship. If the plaintiff in such a case succeeds in proving himself as landlord and the defendant as his tenant, the Small Cause Court would be justified in passing an appropriate decree and in case the court finds that the plaintiff is not the landlord or the defendant is not his tenant, the suit would be dismissed, but in such a matter return of plaint would be wholly unjustified because return of plaint in such cases would encourage the tenant to take false pleas denying the status of their landlord and the purpose of law would be defeated. 24. 24. The submission on behalf of the opposite party-landlady is that the present suit is pending since 2007 and after a gap of several years when the revisionist tenant found that the suit was likely to be decided against him, he moved an application for return of plaint which was rightly rejected by the court below. In the case in hand, the case of the opposite party-landlady is that the land over which the disputed premises exists, was purchased by her husband on 02.02.1957 by means of a registered sale-deed and the structure was raised over this land in the year 1960. On the other hand, the case of the revisionist tenant is that the land over which the shop in question exists, was lying vacant since 1945 and he took possession over the said land to the knowledge of the opposite party-landlady and also raised structure thereon. The U.P.Z.A. & L.R. Act came into force in the year 1950 and by virtue of Section 9 of the Act, the said land settled upon him and he became the owner of the land as well as of the structure standing thereon. The learned court below in the impugned order has made it clear that the revisionist-tenant did not place any material before the court to show that he was in possession of the land since 1945 or that he raised the structure over the said land while the opposite party-landlady has come with a specific plea that her husband purchased the land in 1957 and the structure was raised thereon in the year 1960. In these circumstances, there was no intricate question of title to be decided in the suit. The SCC Suit is pending since 2007. The revisionist tenant filed his written statement and then additional written statement. The application under section 23 of the Provincial Small Causes Court Act was filed after a long gap when the parties entered into evidence. There is also a direction of this Court to decide the case expeditiously. 25. Having gone through the order impugned and the arguments advanced by the learned counsel for the parties, I find that the learned court below has rightly come to the conclusion that there was no sufficient ground for return of the plaint. There is also a direction of this Court to decide the case expeditiously. 25. Having gone through the order impugned and the arguments advanced by the learned counsel for the parties, I find that the learned court below has rightly come to the conclusion that there was no sufficient ground for return of the plaint. The learned court below has also clarified in the last portion of the order that if after evidence of the parties it is found that there is no relationship of landlord tenant between the parties or the opposite party landlady is not the landlady of the revisionist tenant, the suit can be dismissed. The opposite party landlady has claimed herself to be the landlady of the revisionist tenant and the relief claimed by her does not depend upon the proof or disproof of her title. If the revisionist tenant wants to get himself declared as owner of the disputed premises, it is always open for him to file a suit before the court of competent jurisdiction. 26. For the reasons disclosed hereinabove, I do not find any merit in this revision and the same is liable to be dismissed. 27. The revision is hereby dismissed and the learned court below before whom the SCC Suit is pending shall make every endeavour to decide the SCC Suit expeditiously as directed by this Court earlier after giving opportunity of hearing to both the parties. However, it is clarified that it at any subsequent stage of the suit, the court finds it unable to decide the suit for want of sufficient evidence and finds that complicated question of title is involved, it will be open for it to pass appropriate orders keeping in view the provision of section 23 of Provincial Small Cause Courts Act and the law on the subject. 28. In the result SCC Revision No.117 of 2015 is allowed while SCC Revision No.101 of 2015 is dismissed.