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Allahabad High Court · body

2019 DIGILAW 629 (ALL)

Nand Kishore Gupta v. Manik Chandra Gupta

2019-03-07

MANOJ KUMAR GUPTA

body2019
JUDGMENT : 1. By instant petition under Article 227 of the Constitution, the petitioner has challenged the order dated 10.5.2018 passed by Judge Small Causes declining to return plaint of SCC Suit No. 99/2014 for presentation before regular Civil Court as well as the order dated 24.1.2019 passed by Revisional Court dismissing the revision. 2. The basic facts, which are not in dispute, are that the suit for eviction was filed by plaintiff-respondent against the defendant-petitioner for eviction, after determining the tenancy by notice under Section 106 of the Transfer of Property Act, 1882. The plaintiff's case was that U.P. Act No. 13 of 1972 is not applicable to the shop in dispute, consequently, the tenancy was terminable by a simple notice under Section 106 of the Transfer of Property Act. The defendant-petitioner filed written statement followed by an application that the suit is not cognizable by Judge Small Causes, as no relief for compensation for use and occupation for the period after determination of tenancy was claimed. Therefore, the plaint should be returned for presentation before regular Civil Court. 3. The trial Court did not agree with the contention of the petitioner and accordingly rejected the application 32Ka filed in that regard by impugned order dated 10.5.2018. The Revisional Court has concurred with the view taken by the trial Court and has dismissed the revision. 4. Learned counsel for the petitioner sthat in view of Clause (4) of II Schedule as substituted in Uttar Pradesh, a suit by lessor for eviction of lessee from a building as defined in the Explanation would be maintainable before a Court of Small Causes only if the plaintiff apart from relief of eviction also prays for grant of compensation for use and occupation of the building for the period after determination of lease. In other words, the submission is that where compensation for use and occupation of the building after determination of lease is not claimed, the suit would not be maintainable before Judge Small Causes, but would lie before regular Civil Court. 5. Section 15 of the Provincial Small Cause Courts Act, 1887 relates to cognizance of suits by Courts of Small Causes. The said provision, as applicable in the State, reads thus : - "15. 5. Section 15 of the Provincial Small Cause Courts Act, 1887 relates to cognizance of suits by Courts of Small Causes. The said provision, as applicable in the State, reads thus : - "15. Cognizance of suits by Courts of Small Causes.-(1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes. "(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five thousand rupees shall be cognizable by a Court of Small Causes: Provided that in relation to suits by the lessor for the eviction of a lessee for a building after the determination of his lease or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in this sub-section to five thousand rupees shall be construed as a reference to twenty-five thousand rupees. 3. Subject as aforesaid, the State Government, may by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order." 6. On 19.11.2015, an amendment has been carried out in sub-section (2) and the word 'five thousand rupees' has been substituted by the words 'twenty-five thousand rupees'. In the proviso to sub-section (2) for the words 'twenty-five thousand rupees', the words 'one lakh rupees' has been substituted. Thus, according to sub-section (2) of Section 15, subject to exceptions specified in the II Schedule and to the provisions of any enactment for the time being in force all suits of a civil nature of which value does not exceed a particular amount are cognizable by Court of Small Causes. Thus, according to sub-section (2) of Section 15, subject to exceptions specified in the II Schedule and to the provisions of any enactment for the time being in force all suits of a civil nature of which value does not exceed a particular amount are cognizable by Court of Small Causes. The Proviso to sub-section (2) carves out an exception and it provides that in relation to suits by the lessor for eviction of a lessee from the building, after the determination of his lease, or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, subject to valuation specified therein, would be cognizable by a Court of Small Causes. 7. The Second Schedule specifies the nature of suits which are excepted from the cognizance of a Court of Small Causes. 8. Clause 4 of the II Schedule as substituted in Uttar Pradesh reads as under : - "(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from his of compensation for the use and occupation of that building after such determination of lease. Explanation. -For the purposes of this Article, the expression 'building' means a residential or nonresidential roofed structure, and includes any land (including any garden), garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof." 9. Ordinarily, a suit for possession of immovable property or for a recovery of an interest in such property is maintainable before a regular civil Court. An exception to the same has been carved out in case where the immovable property is in possession of tenant and the lessor sues for his eviction or for recovery of rent or for recovery of mesne profits, after determination of lease. In that event, the suit would be cognizable by the Court of Small Causes. The crucial fact which confers jurisdiction upon Judge Small Causes is the institution of suit after determination of lease. In that event, the suit would be cognizable by the Court of Small Causes. The crucial fact which confers jurisdiction upon Judge Small Causes is the institution of suit after determination of lease. In such a suit, it is open to the lessor to also pray for recovery of compensation for use and occupation of building for the period after determination of lease, but it cannot be said that in case where such a relief is not sought meaning thereby that the lessor forgoes claim for compensation, the suit would not be maintainable before Judge Small Causes. 10. This is clear from the language of the provision itself. The phrase 'determination of lease' in Clause (4) is followed by comma. The word 'and' only indicates that apart from seeking eviction, it is open to the lessor to also pray for recovery of compensation for use and occupation of building for the period after determination of lease. The said view stands forfeited from the language of Proviso to sub-section (2) of Section 15, which does not use the word 'and', but instead the word 'or', thus, giving option to the lessor to seek in addition to the relief of eviction, compensation for use and occupation for the period after determination of lease. The entries in the Schedule are to be construed in a manner that advances the legislative intent manifest from the main provisions of the Act. 11. Having regard to the above, this Court is of the considered opinion that there is no force in the submission advanced by learned counsel for the petitioner that the suit in question is not cognizable by Judge Small Causes. 12. The petition lacks merit and is accordingly dismissed.