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2018 DIGILAW 827 (ALL)

TRIYUGI NARAIN GUPTA v. RAMESH CHANDRA JAISWAL

2018-04-05

SANGEETA CHANDRA

body2018
JUDGMENT/ORDER : Sangeeta Chandra, J. I have heard learned counsel for revisionists, Shri Lokesh Kumar Dwivedi and learned counsel appearing for Respondent No.1, Mr. Prabhakar Awasthi and Mr. Kumar Ashutosh Srivastava appearing for Respondent No. 2/1. 2. It has been submitted by the revisionist that by the impugned order dated 07.03.2018 the Special Judge (EC Act)/Additional District Judge, Allahabad has returned the SCC Suit No. 19 of 2011 on the ground that under Section 23 of the Provincial Small Cause Court Act, 1887 since title of property is in dispute and a regular suit is pending for the same, he cannot decide the SCC Suit for arrears of rent and eviction of tenant. 3. It has been submitted by learned counsel for revisionists that initially one Smt. Parwati Devi widow of late Rameshwar Prasad Gupta was the owner of the property in dispute and she had entered into a Rent Agreement with Respondent No. 1, Ramesh Chandra Jaiswal on 20.04.2009 which Lease Deed was valid up to 20.08.2010 @ Rs. 20,000/- per month. The demised property is a Dal Mill situated at Mutthiganj and is run by respondent No. 1. 4. The Lease Deed has been renewed from time to time for a period of 11 months with an increase in rent also. Smt. Parwati Devi the original Lessor executed a Sale Deed in favour of her son and grandson who are revisionists herein on 05.08.2010. This Sale Deed was a registered Sale Deed and in terms of the Agreement entered into with the tenant, the tenant continued to pay the rent to the Revisionists up to 31.01.2011 and then, refused to pay the rent or even vacate the premises. Therefore, the SCC Suit was fled on 17.03.2011 which Suit was initially entertained and after exchange of pleadings, statement of plaintiff Anup Kumar Gupta was recorded and cross-examination of Defendant - Ramesh Chand Jaiswal was also completed and examination-in-chief of Vijay Kumar Gupta, Defendant No. 2/1, was also recorded and cross-examination was going on. 5. The Respondent No. 1, Ramesh Chand Jaiswal, filed a belated application on 10.08.2017 praying for stay of proceedings of the SCC Suit till the disposal of Regular Suit No. 1338 of 2010. 5. The Respondent No. 1, Ramesh Chand Jaiswal, filed a belated application on 10.08.2017 praying for stay of proceedings of the SCC Suit till the disposal of Regular Suit No. 1338 of 2010. In this Application the respondents alleged that the Sale Deed through which the plaintiffs were claiming title over the property in question had been challenged in Regular Suit No. 1338 of 2010 by the original owner of the property - Smt. Parwati Devi along with her son Vijay Kumar Gupta, the Respondent No. 2/1 herein. The learned Court below in stead of staying the suit proceeding as prayed for in Application dated 10.08.2017 (Paper No. 93 Ga) returned the plaint by the impugned judgment and order dated 07.03.2018. 6. It has been submitted by the learned counsel for the revisionists that the Small Causes Court no doubt had no jurisdiction to decide the title/ownership of the property in question and therefore, under Section 23 of the PSCC Act a discretion is cast upon the Judge, Small Causes Court either to continue the hearing of the suit where the question of title is only incidental to the main issue of arrears of rent and liability for eviction or to return the plaint to be filed before the Regular Court. 7. He has submitted that the finding on the issue of title recorded by Judge, Small Causes Court does not operate as res judicata and ultimately the issue of title has to be adjudicated upon by a competent Civil Court. The Small Causes Court can and does enter into the question of title only incidentally. He has referred to a judgment of the Hon'ble Supreme Court rendered in Nirmal Jeet Singh Hoon Versus Irtiza Hussain and Ors., (2010) 14 SCC 564 wherein the Hon'ble Supreme Court has observed on the basis of earlier binding precedents viz. Dhulabai etc. Versus State of M.P., (1969) AIR SC 78; Govt. of Andhra Pradesh Versus Thummala Krishna Rao & Anr. , (1982) AIR SC 1081; State of Tamil Nadu Versus Ramalinga Samigal Madam, (1986) AIR SC 794; and State of Rajasthan versus Harphool Singh (dead) through His Lrs., (2000) 5 SCC 652 that a finding on the issue of title recorded by Small Causes Court does not operate as res judicata and ultimately the issue of title has to be adjudicated upon by competent Civil Court. 8. 8. He has also referred to a judgment of a Coordinate Bench in SCC Revision No. 196 of 2017: Abid Khan Versus Smt. Maya Devi decided on 31.07.2017 (paragraphs - 17 and 18 thereof) to argue that the provision of Section 23 of the Act gives a discretionary power. It does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant. A question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf would not be res judicata in a subsequent suit based on title. In the case of an eviction suit under Rent Control Act, question of title could be considered by Small Causes Court as an incidental question and the final determination of title is left to be decided by the Competent Court in appropriate proceedings. The procedure adopted by the Small Cause Court is summary in nature. Mere denial of landlord and tenant relationship by the defendant-revisionists/tenants would not oust the eviction proceedings before the Small Causes Court. This Court had, therefore, given a finding that the question of title was only incidental and the return of the plaint was not required in all cases. 9. The learned counsel for the revisionists has also submitted that the Respondent No. 1 had initially paid the rent on the basis of the same registered Sale Deed to the revisionists and copies of the rent receipts issued from August, 2010 to January, 2011 have been filed as Annexures to the Stay Application. He has also referred to the Lease Agreement, paragraph - 15 thereof, and the right of the revisionists prima facie being owners of the property, for getting the possession of vacant premises. 10. Shri Prabhakar Awasthi, on the other hand, appearing for the Respondent No. 1 has pointed out that regular Suit raising challenge to the registered Sale Deed was filed on 04. 10. 2010 and it was not as if subsequently the tenant and respondent No. 2/1 had colluded with each other and raised a question of title. The SCC Suit was filed on 17.03.2011 i.e. subsequent to the filing of regular Civil Suit challenging the registered Sale Deed. 10. 2010 and it was not as if subsequently the tenant and respondent No. 2/1 had colluded with each other and raised a question of title. The SCC Suit was filed on 17.03.2011 i.e. subsequent to the filing of regular Civil Suit challenging the registered Sale Deed. He has also referred to the written statement of the Respondent No. 2, Smt. Parwati Devi in the SCC Suit wherein she had denied the title of the revisionists to the property in question and denied the execution of Sale Deed and referred to regular Suit being pending before the Civil Court in this regard. 11. It has been submitted by Mr. Prabhakar Awasthi that Parwati Devi was alive at the time of filing of SCC Suit and she herself had denied executing the Sale Deed. Therefore, the learned Court below while framing issues had framed the issue of title/ownership of the revisionists to the property in dispute as Issue No. 1. It is also his case that even though the Respondent No. 1 may have filed an Application for stay of the proceedings till the decision in regular Suit, it was the discretion of the learned Court below either to stay the proceedings of the SCC Suit indefinitely and wait for decision of regular Suit or to return the plaint to be filed before the competent Civil Court. 12. Shri Lokesh Kumar Dwivedi in rejoinder has pointed out that at the time when the SCC Suit was filed by the revisionists, the revisionists were undoubtedly in possession of a registered Sale Deed and prima facie title existed with them of the property in question as landlord and as per the Lease Deed signed between the parties, the tenant was liable to be evicted and there was no question of disputed title at all. He has also referred to the language of Section 23 of the PSCC Act and the language of Order 7 Rule 10 C.P.C to point out that in the impugned judgment it has nowhere been stated as to which Court is the competent Court where the plaint would be entertained for eviction of tenant. As the tenant is admittedly giving more than Rs. 2,000/- as rent and therefore, his case is not cognizable under the U.P. Act No. 13 of 1972. As the tenant is admittedly giving more than Rs. 2,000/- as rent and therefore, his case is not cognizable under the U.P. Act No. 13 of 1972. He has moreover emphasized that the learned Court below has exceeded its jurisdiction and has given what was not even asked for by the defendant. The defendant had asked for stay of proceedings. The learned Court below has returned the plaint under Order 7 Rule 10 C.P.C. without specifying as to which Court the landlord should approach to evict the tenant. 13. It has also been pointed out by Shri Lokesh Kumar Dwivedi that in the SCC Suit Parwati Devi initially was not a defendant. An Application for Impleadment was filed on her behalf by the Respondent No. 2/1 -Vijay Kumar Gupta, which was allowed. Smt. Parwati Devi died on 14. 01. 2016 that is much after the regular Suit was filed or even the SCC Suit was filed, but no attempt was made to get her oral evidence recorded either before the Civil Court or before the Small Cause Court to find out the truth of the matter. He has also pointed out that it is not unusual for the tenant to raise such a plea disputing the title of the landlord only to avoid the eviction. Moreso, when examination-in-chief and cross-examination of almost all plaintiffs and defendants was over and the matter was nearing decision. The Application for stay of proceedings was filed only on 10.08.2017 although the regular Suit was pending since 2010 and SCC Suit was pending since 2011. 14. The learned counsel for Respondent No. 1 has vehemently opposed the entertainment of this Revision on the ground that the learned Court below rightly exercised its jurisdiction in returning the plaint because the title dispute was to be first decided and the tenant would be ousted from the property in question in the SCC Suit seriously prejudicing his interest at a stage when it was not decided as to who was the landlord. He has also referred to certain observations at internal page - 5 of the impugned judgment, which makes out a case that the Lease Deed was renewed from time to time even after 2011, firstly by Parwati Devi and then by Vijay Kumar Gupta and that his client is paying his rent to Vijay Kumar Gupta. He has also referred to certain observations at internal page - 5 of the impugned judgment, which makes out a case that the Lease Deed was renewed from time to time even after 2011, firstly by Parwati Devi and then by Vijay Kumar Gupta and that his client is paying his rent to Vijay Kumar Gupta. This Court, therefore, put a query to the learned counsel for Respondent No. 1 as to under what authority Vijay Kumar Gupta is claiming rent as he has no registered Sale Deed in his favour, admittedly, and the title dispute of the property in question is pending before the learned Court below. The respondent No. 2 could at the most be a co-owner of the property in dispute, if the Sale Deed made out by his mother to her other son is eventually set aside in pending Civil Suit. 15. It has come out from a perusal of the impugned judgment that w.e.f. 01.09.2015 Vijay Kumar Gupta has been renewing the Lease Deed of a property which prima face belongs to the Revisionists on the basis of the registered Sale Deed made out in their favour by the mother Smt. Parwati Devi. There is a presumption under the Evidence Act with regard to the validity of a document duly registered till such time it is set aside by a Competent Court. 16. Shri Prabhakar Awasthi has in response to the query made by this Court replied that it may have been that Smt. Parwati Devi may have authorized her son Vijay Kumar Gupta to renew the Lease Deed on her behalf as she was infirm. No assumptions and presumptions can be made by this Court in regard to the age of the defendant and their health. This Court is only concerned with the legality of the judgment and order impugned before it. 17. From a perusal of the impugned judgment and order dated 07.03.2018, this Court finds that the learned Court below has tried to shirk its responsibility of deciding the SCC Suit and has not exercised due diligence to even ascertain as to how the tenant is continuing on the basis of the renewal of the Lease Deed by a person who is apparently unauthorized to renew such Lease Deed. The tenant is also allegedly paying rent to a person who does not have any document to show his title as landlord in preference to persons who have registered Sale Deed in their favour. Even if the said Sale Deed is eventually set aside by the Competent Court the Revisionists would still be co-owners of the property in dispute and thus entitled to pursue a suit for eviction of a tenant. 18. The impugned judgment and order is set aside. The matter is remitted to the learned Court below to consider afresh from the stage the Application for stay of proceedings was filed by the Respondent No. 1 before it. 19. The Revision is allowed.