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2022 DIGILAW 433 (ALL)

Dayaram v. Shankar Lal Chaurasiya

2022-03-24

J.J.MUNIR

body2022
JUDGMENT : 1. This petition under Article 227 of the Constitution is directed against an order of the Additional District judge/Special Judge (P.C. Act) Court No. 2, Gorakhpur dated 11.10.2021 dismissing the Civil Revision No. 161 of 2017 and affirming an order dated 01.08.2017 passed by the Judge Small Cause Court in S.C.C. Suit No. 16 of 2015. 2. By the order last mentioned, the Trial Judge has rejected an application preferred by the defendant objecting to the Court's jurisdiction to try this suit and seeking a summary rejection of the plaint on the ground that the Trial Court lacks jurisdiction as per subject matter of the suit. 3. S.C.C. Suit No. 16 of 2015 has been instituted by Shankar Lal Chaurasia, the sole-respondent here and the plaintiff of the suit against Dayaram, the petitioner-defendant, seeking a decree of eviction against the tenant from the tin shed worked shop, a permanent construction and the underlying land together with a decree for arrears of rent and mesne profits. 4. According to the plaintiff's case set out in the plaint, the land underlying the shop detailed at the foot of the plaint was originally in the ownership of Mohan Sinha wherein the defendant was a tenant of Sinha at a monthly rent of Rs. 125/-. The defendant with the permission of Mohan Sinha put up a tin shed worked roof on Pucca walls bringing into existence a permanent construction wherein the defendant established his furniture shop. Mohan Sinha along with the land and the shop sold other properties to the petitioner through a registered sale deed dated 05.09.2000 and delivered the latter ownership possession. The defendant was informed verbally of the assignment as well as in writing through a notice dated 21.08.2000. In compliance, the defendant acknowledging the petitioner to be the landlord deposited some rent in Court under Section 30 of U.P. Act No. 13 of 1972 (for short 'the Act') vide Misc. Case No. 45 of 2000. 5. The plaintiff-respondent made an application for release under Section 21(1)(a) of the Act against the defendant-petitioner on the ground of bona fide need to set up his son, Anoop Kumar Chaurasia in independent business. The aforesaid release application was registered before the Prescribed Authority as P.A. Case No. 33 of 2010. Case No. 45 of 2000. 5. The plaintiff-respondent made an application for release under Section 21(1)(a) of the Act against the defendant-petitioner on the ground of bona fide need to set up his son, Anoop Kumar Chaurasia in independent business. The aforesaid release application was registered before the Prescribed Authority as P.A. Case No. 33 of 2010. It was decided against the petitioner on technical ground, where against an appeal being Rent Appeal No. 5 of 2014 is pending before the Appellate Authority. The plaintiff-respondent and the defendant-petitioner stand in the relationship of landlord and tenant but the defendant is in arrears since 05.09.2000. The tenancy is one from month to month, beginning with the first day of the English calendar month and ending with the last. Upon receipt of notice of assignment through registered sale deed dated 05.09.2000 in favour of the plaintiff-respondent by Mohan Sinha, the defendant-petitioner remitted by money-order up to the month of August 2009 the due rent but the defendant-petitioner is in default since the month of September 2009. He is in arrears ever-since. 6. The defendant-petitioner's tenancy was determined by the plaintiff vide registered notice dated 24.08.2015 issued by the plaintiff-respondent himself to the defendant-petitioner which was duly served. The defendant-petitioner answered the notice on incorrect premises vide his reply dated 22.09.2015. Despite notice to quit and demand for arrears of rent, the defendant-petitioner did not deliver vacant possession of the shop in question compelling the plaintiff-respondent to institute the suit for eviction, recovery of arrears of rent and mesne profits. 7. In the said suit, the defendant-petitioner has made an application dated 23.02.2017 bearing Paper No. 26C. The crux of the application is that the defendant had taken on rent from the former owner and landlord, Mohan Sinha open land whereon with Sinha's permission and consent he put up a tin shed worked shop. He is thus a tenant of open land and not a building. The suit would not be cognizable by the Judge Small Cause Court but on the regular side of the Civil Court. In addition, it is also pleaded that the petitioner has purchased through the registered sale deed dated 05.09.2000 Plot Nos. 151 and 152 from Sinha, whereas the shop in question stands over Plot No. 153. The suit would not be cognizable by the Judge Small Cause Court but on the regular side of the Civil Court. In addition, it is also pleaded that the petitioner has purchased through the registered sale deed dated 05.09.2000 Plot Nos. 151 and 152 from Sinha, whereas the shop in question stands over Plot No. 153. On these premises, the defendant-petitioner questioned the jurisdiction of the Judge Small Cause Court to try the suit with a prayer that the plaint may be summarily rejected. The plaintiff-respondent duly objected to the application and the Trial Judge vide order dated 01.08.2017 rejected the defendant-petitioner's application. 8. Aggrieved, the defendant-petitioner preferred a revision to the District Judge under Section 25 of the Provincial Small Cause Court Act. The said revision has been heard and dismissed by the Additional District Judge vide the order impugned dated 11.10.2021. Dissatisfied, this petition under Article 227 of the Constitution has been filed. 9. Heard Mr. Narendra Kumar Chaturvedi, learned counsel for the petitioner and Mr. Kaushalendra Nath Singh, learned counsel appearing on behalf of the respondent. 10. The Revisional Court has remarked that the defendant does not dispute the fact that he is a tenant and also the fact that he acknowledges the owner of the land as his landlord. It has also been noticed that rent was deposited under Section 30 of the Act. It has, particularly, been noticed by the Revisional Court that the parties are not at issue that the shop in question which is a tin shed worked construction is in existence prior to the execution of the sale deed dated 05.09.2000 in favour of the plaintiff-respondent. There is a further finding that it is not denied by the defendant that he has raised construction of a permanent nature where the foundation is built of brick work, whereas the roof is tin shed worked. In the opinion of the Revisional Court as well as the Trial Court, the defendant-petitioner is a tenant afterall of a building which is a permanent construction standing on brick-worked foundation and walls with a tin shed worked roof. In the circumstances, the Courts below have opined that the defendant-petitioner cannot say that he is tenant of an open land and, therefore, the Judge Small Cause Court does not have jurisdiction to try the suit for eviction. 11. In the circumstances, the Courts below have opined that the defendant-petitioner cannot say that he is tenant of an open land and, therefore, the Judge Small Cause Court does not have jurisdiction to try the suit for eviction. 11. This Court has perused the plaint that is material to determine the question of jurisdiction and the defendant's stand in the application by which he seeks rejection of the plaint, besides whatever material is on record. The impugned orders have also been carefully examined. Mr. Narendra Kumar Chaturvedi, learned counsel for the petitioner has been at pains to say that the defendant-petitioner's tenancy would afterall be one relating to the land alone and he cannot be considered to be a tenant of the shop vis-a-vis the landlord including the successor owner and landlord of the underlying land. In his submissions, therefore, the suit would not be cognizable by the Small Cause Court. 12. Mr. Kaushalendra Nath Singh, Advocate has opposed the motion to admit this petition to hearing and submits that afterall the tenant is a tenant in the shop in question and not an open piece of land, even if he has constructed the shop of his own with the permission of the previous owner and landlord. 13. This Court has carefully considered the matter and perused the findings recorded by the two Courts below. It is difficult to say at this stage that the defendant-petitioner is a tenant of the land alone now that he has constructed a shop which prima facie appears to be a permanent construction. The Courts below have remarked that it has a foundation of brick work and walls of like nature. The roof, no doubt, is tin shed worked. The defendant-petitioner pays rent prima facie to the landlord for the shop that he has constructed on the demised land and is a tenant in the shop. Whether the shop in question is a permanent construction or not and what is the precise nature of the tenancy, whether it is of a building or an open piece of land, are all issues that can be gone into at the time of trial of the suit. It would require evidence to be led for the Court to finally ascertain the nature of the construction that the shop in question is. It would require evidence to be led for the Court to finally ascertain the nature of the construction that the shop in question is. Whether it is a permanent construction that would qualify as a building in terms of the explanation appended to the proviso to sub Section (2) of Section 15 of the Provincial Small Cause Court Act, entitling the Small Cause Court to try the suit, can be determined after parties have led evidence on the point. It would also have to be determined depending on the nature of the evidence, whether indeed the defendant-petitioner is tenant of an open land alone and the shop is a only temporary structure or a building within the meaning of Section 15 of the Provincial Small Cause Court Act, as amended in its application to the State of Uttar Pradesh. It is not possible to go into all these questions at the interlocutory stage sans evidence. The application made by the petitioner appears to be no more than a dilatory tactic and not a serious endeavor to question the Court's jurisdiction. 14. As matter stands, the orders impugned by the Courts below cannot be questioned much less interfered with by this Court in exercise of our jurisdiction under Article 227 of the Constitution. 15. In the result, no case for the interference with the orders impugned is made out. This petition is dismissed. There shall be no orders as to costs.