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2018 DIGILAW 319 (UTT)

Sita Ram v. Subhash Chand Pandey

2018-06-15

MANOJ K.TIWARI

body2018
JUDGMENT : 1. This is tenant’s revision against the order dated 04.04.2016 passed by learned Small Cause Court/2nd Additional District Judge, Haldwani, District Nainital in SCC Suit No. 19 of 2012. By the said order, revisionist’s application under Section 23 of Provincial Small Cause Courts Act has been rejected. 2. It transpires that the respondent (Sri Subhash Chand Pandey) filed a suit for eviction and recovery of arrears of rent against the revisionist in the year 2012 with the averment that he is the landlord and revisionist is his tenant. Revisionist, in his written statement, disputed the said claim made by the respondent and asserted his own title over the premises in question. While plaintiff was being cross-examined, defendant (revisionist herein) filed an application under Section 23 of the Provincial Small Cause Courts Act stating that he constructed the premises in question, over Nazul Land at his own expenses, therefore, he is the owner of the premises in question. It was further stated that there is no relationship of landlord and tenant between him and the plaintiff, therefore, he made a prayer to return the plaint under Section 23 of the Act. The said application was rejected by learned court below vide order dated 04.04.2016, which is impugned in the Revision. 3. Learned court below has rejected the application of the revisionist by holding that no relief regarding ownership of the property has been sought in the suit and further that rent deed dated 06.06.1993 and notice to quit issued by plaintiff prima-facie indicate that plaintiff is the landlord. The reason assigned for rejecting the application is that the Small Cause Court can decide a suit, where question of title is incidentally involved. 4. Hon’ble Supreme Court in the case of Shamim Akhtar vs. Iqbal Ahmad and Another reported in (2000) 8 SCC 123 has summarised the law on the point. Para 12 of the said judgment is extracted below. “The trial court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff-appellant under section 23 of the Small Cause Courts Act. Para 12 of the said judgment is extracted below. “The trial court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiff-appellant under section 23 of the Small Cause Courts Act. Section 23(1) provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depends 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. The power vested under sub-section (1) in the court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Cause Court depends upon the proof or disproof of a title to the immovable property and the relief sought cannot be granted without determination of the question. In the present case, as noted earlier, the plaintiff filed a petition for eviction under Section 20(2)(f) alleging that she was the landlady of the house and she had inducted Respondent 1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed the trial court, at the first instance, had accepted the plaintiff’s case holding, inter alia, that she had got the property by a registered deed of gift from Smt Khairunnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who, undisputedly was the original owner of the property. The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Cause Court to determine finally the title to the property. The respondent tenant by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Cause Courts Act.” 5. The respondent tenant by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in Section 23(1) of the Small Cause Courts Act.” 5. It is settled position in law that bar of Section 23 of Provincial Small Cause Courts Act is not attracted where the question of title is incidentally in question. Moreover, the power under Section 23 of the Act is discretionary. 6. I have gone through the order impugned in the revision and I do not find any reason to interfere with the same. 7. Since learned court below has framed a issue as to whether there is relationship of landlord and tenant between the parties or not, therefore, learned court below is directed to decide the said issue as a preliminary issue, upon considering entire evidence on record. While considering the said issue, learned court below shall record a finding as to whether title dispute is arising directly in the suit or it is arising only incidentally. Since, the suit is pending before the court below since 2012, therefore, this court hopes and expects that the court below shall hear and decide the suit as early as possible, without granting any unnecessary adjournment to the parties. 8. With the aforesaid direction, civil revision is disposed of.