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2018 DIGILAW 977 (ALL)

Ratan Lal Kushwaha v. Wati

2018-04-19

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. This petition has been filed under Article 227 of the Constitution praying for exercise of supervisory jurisdiction and for quashing of the impugned judgment and order 24.2.2018 passed in Small Causes Case No. 51 of 2017 (Ratan Lal v. Smt. Wati) and also the impugned order dated 19.9.2017 passed in Small Causes Case No. 23 of 2015 (Smt. Wati v. Ratan Lal) passed by the Judge Small Causes Court, Jhansi and for a direction to the learned Court below not to proceed to decide the Small Causes Case No. 23 of 2015. 2. Learned counsel for the petitioner submits that the plaintiff/respondent has filed a Suit for eviction of the petitioner claiming him to be a tenant at Rs. 300/- per month of a house situated in village Singarra (Bhattagaon), Jhansi. A total sum of Rs. 10,800/- was claimed as arrears of rent for past three years, has also a decree for eviction and damages at the rate of Rs. 100/- per day. 3. The petitioner filed his objections to the said plaint in the form of Application No. 35-C(2) saying that he was the actual owner of the house and he also submitted tax receipt of the house in question which has been numbered as 324 in Ward No. 23, Singarra, Jhansi after the village in question came within the municipal limits of the city of Jhansi. 4. The application was rejected by the learned Trial Court and the petitioner thereafter filed a Revision No. 51 of 2017 before the Court of District Judge, Jhansi which Revision had also been rejected arbitrarily on 24.2.2018. 5. Learned counsel for the petitioner submits that this Court in Mst. Bhagamani Devi (dead) through L.Rs. v. VIII ADJ & other 2011 (9) ADJ 567 has observed in paragraph 21 that where serious dispute of title has arisen, the Court of Small Causes shall not proceed with the matter but ought to return the plaint for presentation before a Court competent to decide such a question normally i.e. regular Court. 6. He has also placed reliance upon paragraph 23 of the said judgment wherein this Court had observed that to attract Section 23 of the Small Causes Courts Act, it is necessary that there must be dispute of title between the parties in the sense that both of them are claiming title among themselves. 6. He has also placed reliance upon paragraph 23 of the said judgment wherein this Court had observed that to attract Section 23 of the Small Causes Courts Act, it is necessary that there must be dispute of title between the parties in the sense that both of them are claiming title among themselves. Under the Section the enquiry is limited only to the right of the plaintiff and to the relief claimed by him. The Court therefore has to see the pleadings in the plaint and decide the matter. 7. Learned Court for the petitioner has also placed reliance upon another judgment of this Court in Shiv Narain v. Har Swaroop 2009 (2) ARC 775 wherein this Court placed reliance upon a judgment rendered by the Hon'ble Supreme Court in Budhu Mal v. Mahabir Prasad & others 1988 (4) SC 194 to observe that a dispute regarding title to the house in question was involved. The petitioner on the one hand had claimed that he was the owner of the house in pursuance of a partition and an arbitration. The defendant/respondent however claimed that he was the owner in possession thereof and he got it through his step mother, a question of title having arisen, it was necessary for the Court below to have returned the plaint as provided under Section 23 of the Provincial Small Causes Courts Act instead of deciding the same on merits. 8. In Budhu Mal v. Mahabir Prasad & others 1988 (4) SC 194, the Hon'ble Supreme Court in paragraphs 9 & 10 has observed thus:- "9. With regard to the applicability of Section 23 aforesaid the High Court has taken the view that the said section gave a discretion to a court to return or not to return the plaint where a question of title is raised and did not debar it from deciding the suit. If in a particular case the Judge, Small Causes did not exercise his discretion to return the plaint the said discretion could not be interfered with in a civil revision. 10. It is true that Section 23 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. 10. It is true that Section 23 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. It is also PG No. 243 true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res-judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title. In case the plea set up by the appellants that by the deed dated 8th December, 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt. Sulochna Devi and that the said deed could not be unilaterally cancelled, is accepted, it is likely not only to affect the title of Mahabir Prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant between Mahabir Prasad 'and the appellants which could not he revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated 8th December, 1966. In that event it may not he possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. In that event it may not he possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. If the suits cannot be construed to be one between landlord and tenant they would not be cognizable by a court of small causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate court so that none of the parties was prejudiced." 10. I have carefully perused the judgment relied upon by the learned counsel for the petitioner. I find that all of them state the settled position in law that where there is a dispute regarding the title which is intricately enmeshed with the relief claimed by the plaintiff, then the Small Causes Court ought not to entertain such a suit. 11. However, it is also true that if a question of title is only incidentally involved, then the learned Trial Court can look into it only to determine the relationship of landlord and tenant. If any observations are made by the learned Trial Court with regard to title, the Small Cause Court being the Court of summary jurisdiction. Its observations would not amount to res-judicata between the parties and it is open for the parties to file a Civil Suit to get a declaration regarding title by the competent Court. 12. In the facts of the case of the petitioner herein, the application moved under 35-C(2) by him, has been kept pending by the Judge Small Causes Court on the ground that the objections shall be considered after sufficient evidence has been led in the matter. 13. Under Section 23, the Small Causes Court has the power to return the plaint "at any stage", therefore it cannot be said that the Judge Small Causes Court acted against the law. Tax receipts had been produced by the petitioner/tenant which were looked into by the learned Court below, but no title deed as such, no registered sale agreement, or even will was produced to show how the petitioner/tenant had come into the ownership of the house in question. 14. Tax receipts had been produced by the petitioner/tenant which were looked into by the learned Court below, but no title deed as such, no registered sale agreement, or even will was produced to show how the petitioner/tenant had come into the ownership of the house in question. 14. Therefore, the learned District Judge also by his order dated 24.2.2018 has rightly dismissed the Revision observing therein that the application/paper no. 35-C(2) is still pending before the learned Trial Court and the Trial Court is free to look into all evidence and decide the question regarding whether it has jurisdiction or his barred under Section 23 after sufficient leading of evidence. 15. I do not find any factual or legal infirmity in the order impugned. 16. The writ petition is dismissed. No order as to costs.