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2019 DIGILAW 1423 (ALL)

Ashok Kumar Gumbar v. Waqf Khudaband Tala Mausuma

2019-05-24

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : Yogendra Kumar Srivastava, J. Heard Sri Sharad Kumar Pandey, learned counsel for the revisionists and Sri Chetan Chatterjee, learned counsel for the respondent. 2. The present revision has been filed against the order dated 23.04.2019 passed by the Judge Small Causes Court/A.D.J. Court No.6, Saharanpur in S.C.C. Suit No.5 of 2018, whereby the application (Application No. 37-Ga) filed under Section 23 of the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as 'the Act') has been rejected. 3. The sole contention raised on behalf of the revisionists is that in an affidavit filed in an earlier S.C.C. Suit No. 65 of 2013 it had been stated by the plaintiff that in terms of the registered waqf deed dated 01.09.1995 and the supplementary deed dated 26.03.1996 the shops bearing Nagar Palika Nos. 5/174 to 5/176 were not part of the waqf property. 4. Per contra, learned counsel for the respondent submits that pursuant to the rectification deed dated 12.08.2005 the shop in question was included as part of the waqf property, and this fact has been duly noticed by the trial court. Moreover, the landlord tenant relationship having been duly admitted, the trial court has rightly proceeded to reject the application filed under Section 23 of the Act. 5. It may be seen that the court below has taken note of the fact that the revisionists-tenant in their application (Paper No. 37-Ga) had duly admitted that a rent agreement dated 22.10.1999 was executed between him and one Swaleh Abad and during his life time the rent of the shop in question was duly received by the aforesaid Swaleh Abad and upon his demise the rent was received by his widow Khushnuda Begum and the rent receipts were also issued by her. The court below has also recorded that the copy of the waqf deed dated 26.3.1996 which had been filed by the plaintiff-landlord made it clear that the waqf was created by the aforementioned Swaleh Abad. On the basis of the aforementioned facts, the trial court has drawn an inference that the relationship of tenant-landlord had been duly established between the revisionists and Swaleh Abad, i.e. the person who had created the waqf and had dedicated the property in question to the waqf. 6. On the basis of the aforementioned facts, the trial court has drawn an inference that the relationship of tenant-landlord had been duly established between the revisionists and Swaleh Abad, i.e. the person who had created the waqf and had dedicated the property in question to the waqf. 6. Section 23 of the Act provides for return of plaint in a suit involving questions of title and in terms thereof 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. 7. It is thus clear that Section 23 confers a discretion on the Small Cause Court to return a plaint when a dispute in respect of title is raised which it finds is of such a nature that it would be more appropriate to be decided by regular civil court. 8. The Court while considering the return of plaint, has to bear in mind that the right of the plaintiff and the relief claimed by him must be of such a nature that the same would depend upon "proof or disproof of a title to immovable property". Thus, for the Court to exercise its discretion to return the plaint, there must be prima facie material on record to demonstrate that there was a serious substantial and complex issue of title which may justify the relegation of the parties to institute appropriate proceedings before the regular civil court having jurisdiction to determine the title. 9. The scope of Section 23 of the Act came up for consideration in the case of Budhu Mal Vs. Mahabir Prasad & Ors., (1988) 4 SCC 194 and it was held 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, and a question of title could also incidentally be gone into by the Court of Small Cause. The observations made in the aforementioned judgment are as follows :- "10. The observations made in the aforementioned judgment are as follows :- "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 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...." 10. Reference may also be had in the case of Pratap Singh Vs. IXth Additional District Judge, Fatehpur and Ors., (2000) 3 AWC 1995 wherein it was held as follows :- "6. A Small Causes Court is expected to try suits of a comparatively simple character and, therefore, suits involving question of title should not be entertained by that Court. Section 23 is intended to enable the Courts of Small Causes to save their time by returning the plaints in suits which involve enquiry into the question of title. This section is designed to meet the cases in which Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in ordinary Court in which evidence is recorded in full and the decision is open to appeal. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would. if given by an original Court. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would. if given by an original Court. ordinarily be subject to appeal and even to second appeal and which decision would ordinarily be res judicata between the parties, should be given in the particular case before a Small Causes Court, by an original Court, the Small Causes Court though competent to decide incidentally the question of title in that particular case might exercise with discretion the power of returning the plaint to be presented to the original Court which would have jurisdiction to so decide on that title finally. Obviously, the section is designed to meet the cases in which the Judge. Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in an ordinary Court in which evidence is recorded in full and decision is open to appeal. 7. Section 23 is framed in optional terms giving discretion to the Court to act in the matter or not. and therefore, in suits involving question of title, the Small Causes Court has a discretion either to decide the question of title or to act under this section and return the plaint. It is not always bound to return the same. Nevertheless, when any complicated question of title arises. it would be the wiser course for Small Causes Court in the exercise of its discretion to act under Section 23 and return the plaint." 11. In the case at hand, the revisionists-tenant having duly admitted tenant-landlord relationship with Swaleh Abad, the person who had created the waqf and dedicated the property in question to the waqf, the provisions of Section 23 would not be attracted. 12. In the case of Shri Kant Trivedi Vs. Vijay Rani Tandon and another, (2015) 1 ARC 381 this Court upon taking note of the fact that the defendant-tenant had accepted relationship of landlord and tenant between the parties, held that no error had been committed by the court below in rejecting the application for return of plaint under Section 23 of the Act. The observations made in the judgment are as under :- "2. The observations made in the judgment are as under :- "2. In view of above agreement, under which the defendant revisionist accepts the relationship of landlord and tenant between the parties, the court below has not committed any error in rejecting the application under Section 23 of the Act inasmuch as the suit for arrears of rent and eviction is supposed to be decided on the basis of the above relationship and the question of title does not get involved at all." 13. A similar view was taken in the case of Jugal Kishore Vs. The IInd Additional District Judge, Jalaun at Orai and others, (1984) 2 ARC 165 wherein this Court upon considering the fact that the authorities had found that there was a relationship of landlord and tenant between the petitioner and respondent, the refusal by Judge Small Causes Court to return the plaint could not be said to be arbitrary. The observations made in the aforementioned judgment are as follows :- "The second argument of the learned counsel for the petitioner was that since the dispute raised into written statement was relating to the title of the property, the Judge Small Causes under Section 23 of the Provincial Small Cause Court Act should have returned the plaint for presentation to the regular side. All the authorities have found that there was a relationship of landlord and tenant between the petitioner and respondent no. 3. On that basis the suit was decreed. Section 23 is not mandatory in nature and confers discretion on the court before which the suit is filed. On the facts and circumstances of the present case it cannot be said that refusal to return the plaint was arbitrary or was in violation to any provision of law." 14. It may thus be seen that where the Small Cause Court is called upon to consider the prayer for return of plaint under Section 23 of the Act, what is required to be considered is whether the suit has been filed on the basis of relationship of landlord and tenant and as to whether the denial of relationship of landlord and tenant was bonafide or had been set up only to oust the jurisdiction of the Judge Small Cause Court. In a case where relationship between the parties of landlord and tenant had been established refusal by the trial court to return the plaint could not be said to be arbitrary. 15. A suit for eviction filed before the Judge Small Cause Court is to be decided on the basis of the relationship of landlord and tenant, and in a case where the said relationship is duly established the question of title does not at all get involved and the provisions of Section 23 of the Act for return of plaint would not be attracted. 16. The scope of revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887 (in short 'the Act, 1887') fell for consideration in a recent judgment of the Supreme Court in the case of Trilok Singh Chauhan V. Ram Lal & Ors., (2018) 2 SCC 566 wherein referring to the earlier judgment in the case of Hari Shankar Vs. Rao Girdhari Lal Chowdhury, (1963) AIR SC 698 Bell & Co. Ltd. Vs. Waman Hemraj, (1938) AIR Bombay 223 and Mundri Lal Vs. Sushhila Rani, (2007) 8 SCC 609 it was held as follows:- "15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury, (1963) AIR SC 698, in paras 9 and 10, this Court laid down the following: (AIR p. 701) "9. The section we are dealing with, is almost the same as Section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given. The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. It is useless to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C.J. (as he then was) in Bell & Co. Ltd. v. Waman Hemraj, (1938) 40 BLR 125 : 1937 SCC OnLine Bom 99 : AIR 1938 Bom 223], where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 3-4) "3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. 4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.' This observation has our full concurrence. 10. What the learned Chief Justice has said applies to Section 35 of the Act, with which we are concerned. Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption." 16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani, (2007) 8 SCC 609 . Judged from this point of view, the learned Single Judge was not justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption." 16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani, (2007) 8 SCC 609 . This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence." 17. Learned counsel for the revisionists has not been able to dispute the aforementioned proposition of law nor has been able to point out any material error or illegality in the order passed by the court below so as to warrant interference by this Court under Section 25 of Provincial Small Causes Courts Act, 1887. 18. The S.C.C. Revision lacks merit and it is accordingly dismissed.