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2018 DIGILAW 1954 (ALL)

MOHD. JAWAID v. RENU KHARE

2018-09-11

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri Swetashwa Agarwal, learned counsel for the revisionist and Sri P.N. Saxena, learned Senior Counsel assisted by Sri Raj Nath Pandey, learned counsel appearing for the opposite party. 2. Present revision has been filed for setting aside the order dated 10.4.2018 passed by Additional District Judge, Court No. 17, Kanpur Nagar in SCC No. 123 of 2015 (Mohd. Javed v. Renu Khare). 3. By the impugned the application paper No. 35-Ga filed by the plaintiff under Order 15 Rule 5 CPC has been rejected by the Court below. Simultaneously, by holding that the question of title is involved in the case, the plaint has been returned for presentation before the competent Civil Court in exercise of powers under Section 23 of Provincial Small Causes Court Act, 1887 (hereinafter referred to as the Act). The impugned order has been passed on the ground that an agreement to sell was in existence between the parties and therefore, there was no relationship of landlord and tenant between the parties and as such the application filed under Order 15 Rule 5 CPC is liable to be rejected and the plaint was returned as noted above. 4. By drawing attention to order dated 25.11.2017 it was pointed out that the application paper No. 35-Ga filed under Order 15 Rule 5 CPC was kept for disposal at the time of hearing, however, on an application for recall of the aforesaid order, vide order dated 19.3.2018, the aforesaid application and the application filed by the defendant under Section 23 of the Act being paper No. 39-Ga (2) were clubbed together and both the applications were kept for disposal on 27.3.2018. Highlighting the fact that in the impugned order there is no reference to application paper No. 39-Ga (2) filed by the defendant under Section 23 of the Act, it was submitted that without considering the aforesaid application, an order has been passed exercising powers under Section 23 of the Act directing for return of the plaint, which is wholly illegal. It was further submitted that there is no dispute about the landlord tenant relationship between the parties and no question regarding title of the revisionist herein over the property in question was ever raised and merely by making a vague assertion that regarding title of the landlord the case would not by itself be covered under Section 23 of the Act. It was submitted that unregistered agreement to sell has been incorrectly relied on, whereas the same could not have been relied on or read into evidence being unregistered document. It was submitted that unregistered agreement to sell is not binding on parties, and in any view of the matter, admittedly, no sale-deed was ever executed between the parties. It was submitted that incidental question of title can be seen by the Small Causes Court and, therefore, return of plaint under Section 23 of the Act was absolutely illegal. It was further pointed out that even as per Clause 2 of the agreement of the year 2011 till the payment of Rs. 60 lakhs the rent of Rs. 9500/- will not be given by the first party i.e. the respondent herein (Smt. Renu Khare). Submission, therefore, is that admittedly the word ‘rent’ is used in the agreement and in view of the undisputed fact that the amount of Rs. 60 lakhs was not paid, this clause of payment of rent of Rs. 9500/- was binding between the parties. It was submitted that it is the settled law that even if the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount referred to in the first part of Rule 5 Order 15 CPC but he would still be required to deposit the monthly amount due, which was admittedly was not done in the present case and as such the rejection of application filed under Order 15 Rule 5 CPC was absolutely illegal. Elaborating the arguments, learned counsel for the revisionist by drawing attention to the reply dated 15.3.2015 given by the respondent at Page 15 highlighted the fact that as per the condition No. 2 of the agreement, a sum of Rs. 9500/- was being paid as rent and as such the tenancy is not in dispute. Learned counsel for the revisionist has further drawn attention to the agreement dated 4.2.2009 and the second agreement dated 7.7.2011 at page 77 of the paper book, which clearly contains condition No. 2 that after paying a sum of Rs. 60 lakhs (Rs. 37.5 lakhs more) rent of Rs. 9500/- will not be given by the first party i.e. Smt. Renu Khare. 5. 60 lakhs (Rs. 37.5 lakhs more) rent of Rs. 9500/- will not be given by the first party i.e. Smt. Renu Khare. 5. Learned counsel for the revisionist had also drawn attention to paragraph 10 of the written statement filed by the respondent herein, wherein title/ownership of plaintiff-revisionist herein has been clearly admitted. He submitted that undisputedly, the agreement to sell is an unregistered agreement and thus, has no value in the eye of law and it was an agreement to sell between the landlord and tenant which is something different and the relationship of landlord and tenant is different. In support of his argument that rejection of application under Order 15 Rule 5 CPC he has placed reliance on a Judgment of this Court in case of Maya Devi and another v. Vipin Kumar Kushwaha and another, 2017 (1) JCLR 742. 6. Regarding his argument that application under Section 23 of the Act has been illegally returned, learned counsel for the petitioner has placed reliance on judgment of Hon’ble Apex Court in the case of Sami Akhtar v. Iqbal Ahmad, 2000 (8) SCC 123 , Budhmal v. Mihir Prasad, AIR 88 SCC 1774 and Judgment of this Court in the case of Pradeep Kumar Gupta v. Smt. Kanchan Gupta, 2016 (1) ARC 441 . He further submitted that for the purpose of invoking under Section 23 of the Act question of title must be involved, whereas in the present case the title of the plaintiff has been admitted. 7. Per contra, learned counsel for the respondent submitted that in the present case there was an agreement to sell and the relationship of landlord tenant does not exist. He further submits that even if the condition No. 2 is included in the agreement, a bare reading of the document by itself would clearly indicate that it is an agreement to sell and not a rent agreement. He further submitted that each and every document on record reflects that there was an agreement to sell between the parties and there exists no landlord tenant relationship. He submits that there were two agreements to sell, one, dated 4.2.2009 and second, dated 7.7.2011 by which the time was extended for execution of sale-deed. He further submitted that each and every document on record reflects that there was an agreement to sell between the parties and there exists no landlord tenant relationship. He submits that there were two agreements to sell, one, dated 4.2.2009 and second, dated 7.7.2011 by which the time was extended for execution of sale-deed. He submitted that there is no assertion that defendant is the tenant in the property in question and that concept of ownership and landlordship are different in law and, therefore, there being no material on record to indicate the relationship of landlord and tenant, the plaint was rightly returned under Section 23 of the Act. He further submitted that the entire case of the plaintiff is based on the agreement to sell dated 7.7.2011 and, therefore, the plaint itself was rightly returned and once there exists no landlord tenant relationship the application under Order 15 Rule 5 CPC was rightly rejected. It was submitted that the conclusion drawn by the trial Court that there was no tenant and landlord relationship between the parties and on the contrary the agreement to sell is in existence and for this reason no interference is required in the order impugned herein. 8. I have considered the rival submissions and have perused the record. 9. On perusal of record I find that in the impugned order there is no mention of the application filed under Section 23 of the Act being paper No. 39 (2)(Ga) filed by the defendant. The application under Order 15 Rule 5 CPC has been rejected only on the ground that there is no landlord tenant relationship between the parties and this conclusion was drawn on the basis of unregistered agreement to sell, which is not admissible in law. In Maya Devi (supra) this Court after dealing with several judgments has held that even if the landlord tenant relationship is denied still the monthly amount due within a week from the date of its approval from the continuance of the suit has to be made, whether this amount is admitted or not, therefore, merely by denying the relationship of landlord and tenant between the parties the Court below appears to have committed illegality in rejecting the aforesaid application. The Court below has heavily relied on the agreement to sell between the parties, which is admittedly an unregistered piece of document and a glance over on page 17 of paper book would indicate that it appears to be on plain papers. Further, in paragraph 1 of the plaint it has been categorically stated that the plaintiff is the owner/landlord of the premises in question. In paragraph 2 of the plaint it has been categorically stated that the defendant had taken a portion of premises in dispute No. 31 Industrial Estate, Kalpi Road, Kanpur at a rental of Rs. 9500/- exclusive of water and other taxes and has also made material alterations therein. In the written statement of paragraph 1 of the plaint has been replied that the contents of paragraph 1 of the plaint, in the manner and form and with the object and the intention have been stated, are to be at present proved by the plaintiff. The same words ‘at present’ have been used in paragraphs 2 and 3 of the written statement that the contents of paragraph 2 of the plaint are not admitted. In both the paragraphs the word “FILHAL” (broadly speaking ‘at present’) have been used. However, more importantly in paragraph 10 of the written statement this fact has been admitted that the petitioner is the owner of the property in question. Thus, admittedly, there is no dispute about the title involved in the present case. The agreement to sell executed between the parties may not have any value for the purpose of execution of the sale-deed, however, condition No. 2 of the agreement dated 7.7.2011 is important, which is quoted as under : “2. After paying a sum of Rs. 60 Lacs, (37.5 lacs more), the rent of Rs. 9,500/- will not be given by the first party.” 10. Admittedly, no sale-deed was executed between the parties. It is also not in dispute that only a sum of Rs. 59,50,000/- was paid pursuant to the aforesaid agreement and, therefore, the aforesaid sum of Rs. 60 lakh was falling short and entire sum was not paid and as such the term regarding payment of rent of Rs. 9500/- continued to be in force. A plain reading of Section 23 of the Act clearly indicates that it provides for return of plaint in suits involving question of title. 60 lakh was falling short and entire sum was not paid and as such the term regarding payment of rent of Rs. 9500/- continued to be in force. A plain reading of Section 23 of the Act clearly indicates that it provides for return of plaint in suits involving question of title. Relevant sub-section 1 of Section 23 of the Act is quoted as under : “(1) Notwithstanding anything in the forgoing 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 stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.” 11. While interpreting the aforesaid provision the Hon’ble Apex Court has held that all incidental issues regarding title to the immovable property or other title can be seen by the Court of Small Causes. 12. Thus, in the opinion of the Court the impugned order suffers from material irregularities and jurisdictional error in the eye of law. Accordingly, the impugned order dated 10.4.2018 is liable to be set aside and hereby set aside. The matter is remanded back to the Court below for decision afresh on both the applications filed by the plaintiff under Order 15 Rule 5 CPC and the application filed by the defendant under Section 23 of the Provincial Small Causes Act, 1887 in accordance with law on its own merits. 13. With the aforesaid observations, present revision stands allowed. 14. There shall be no order as to costs.