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2024 DIGILAW 1677 (ALL)

Seeta Gupta v. Additional District Judge

2024-07-15

SARAL SRIVASTAVA

body2024
JUDGMENT : Saral Srivastava, J. Heard Sri Ashish Agrawal, learned counsel for the petitioners, and Sri Arvind Srivastava, learned counsel for the respondents. 2. The petitioners through the present writ petition have prayed for setting aside the order dated 3.8.2013 passed by the Additional District Judge, Court No. 3, Etawah in S.C.C. Revision No. 1 of 2013 (Abdul Gaffar v. Smt. Sita Gupta and others) by which the revision filed by respondent No. 2-Abdul Gaffar was allowed. The Revisional Court remanded the matter to the Trial Court. 3. The facts in brief are that two shops bearing Municipal No. 168-A/1 and 168-A/2 are situated in Mohalla Sabitganj, Etawah. Later on, the number of the shops mentioned above has been changed by the Nagar Nigam. Shop No. 168-A/1 was numbered 168 and Shop No. 168-A/2 was allotted No. 168-A by Nagar Palika (hereinafter referred to as 'suit property'). One Sone Lal S/o Bhure Lal Vishwakarma was the owner of the suit property. He took a loan from U.P. Financial Corporation, Kanpur (hereinafter referred to as 'U.P.F.C.'). Since he could not repay the loan taken from U.P.F.C., therefore, U.P.F.C. to recover the loan amount, put the suit property into auction on 18.11.1978 in which one Vinay Kumar Gupta was the highest bidder, and the suit property was auctioned to him. 4. Consequent to the auction of the suit property to Vinay Kumar Gupta, the U.P.F.C. issued the sale certificate on 24.2.1979 in respect of the suit property. The suit property was in possession of one Abdul Gaffar. The auction purchaser-Vinay Kumar Gupta instituted Original Suit No. 6 of 1982 against the State of U.P. and Sone Lal Sharma (the then owner of suit property) praying for a decree of possession. 5. In the said suit, Abdul Gaffar filed an impleadment application on the ground that since he was in possession of the suit property, therefore, any decree passed in Original Suit No. 6 of 1982 would prejudice the rights of Abdul Gaffar. The said impleadment application of Abdul Gaffar was allowed by the Trial Court. However, the Original Suit No. 6 of 1982 was later on dismissed in default. 6. According to petitioners, the suit property was purchased by one Shrawan Kumar Gupta, husband of petitioner No. 1 and father of petitioner Nos. 2 and 3 by sale-deed dated 23.4.1992. The said impleadment application of Abdul Gaffar was allowed by the Trial Court. However, the Original Suit No. 6 of 1982 was later on dismissed in default. 6. According to petitioners, the suit property was purchased by one Shrawan Kumar Gupta, husband of petitioner No. 1 and father of petitioner Nos. 2 and 3 by sale-deed dated 23.4.1992. After purchasing the suit property, Shrawan Kumar Gupta instituted S.C.C. Suit No. 40 of 1992 against Abdul Gaffar praying for a decree of eviction and recovery of arrears of rent. Shrawan Kumar Gupta died during the pendency of the aforesaid suit and after his death, petitioners being heirs of Shrawan Kumar Gupta were substituted as plaintiffs in the aforesaid suit. 7. The case of the petitioners in the suit was that Abdul Gaffar was the tenant of the suit property and after the purchase of the suit property by Vinay Kumar Gupta in an auction by U.P.F.C., Abdul Gaffar did not pay the rent since 18.11.1978. It is further pleaded that the plaintiff sent a registered notice dated 28.10.1992 to Abdul Gaffar terminating the tenancy, but he refused to accept the said notice. In the aforesaid backdrop, the petitioners/plaintiff have prayed for the aforesaid relief in the suit. 8. The S.C.C. Suit No. 40 of 1992 was contested by Abdul Gaffar by filing a written statement wherein he admitted in paragraph 9 of the written statement that he was a tenant of the erstwhile owner of the suit property Sone Lal Sharma on a rent of Rs. 15/- per month since 1976. He denied the title of the petitioners over the suit property on the ground that since the suit property was a Waqf Property and Case No. 91 of 1995 (Shrawan Kumar v. U.P. Sunni Central Board) in this respect was pending in the Court of Civil Judge (Senior Division), Etawah which was later on transferred to the Court of Chief Judicial Magistrate-III in which Abdul Gaffar had also applied impleadment and until the Original Suit No. 91 of 1995 is decided, the present case i.e. S.C.C. Suit No. 40 of 1992 may be stayed. 9. 9. It is further pleaded that Vinay Kumar Gupta, the auction purchaser of the suit property, also instituted Original Suit No. 6 of 1982 against the State of U.P. and erstwhile owner Sone Lal Sharma in which he also filed an impleadment application which was allowed by the Trial Court. However, the Original Suit No. 6 of 1982 was later on dismissed in default. 10. On the aforesaid pleading, he denied the fact that the petitioners are the landlord of the suit property and that the claim of the petitioners is based upon a forged sale-deed. He further pleaded that he had continued to pay rent to the erstwhile owner and landlord Sone Lal Sharma, and there is no default in payment of rent. 11. The record further reveals that in the S.C.C. Suit No. 40 of 1992, the Waqf Board also filed an application for impleadment under Order 1 Rule 10 of C.P.C. claiming that the suit property was a 'Waqf Property', and the suit on behalf of the petitioners was not maintainable. However, the impleadment application of the Waqf Board was rejected by the Trial Court against which Waqf Board preferred S.C.C. Revision which was also dismissed by the Revisional Court. The Waqf Board, thereafter, preferred Civil Misc. Writ Petition No. 14499 of 1996 challenging the order of the Revisional Court as well as the Trial Court rejecting the impleadment application of the Waqf Board. 12. The aforesaid writ petition was dismissed by this Court by judgment and order dated 22.4.1996. After the dismissal of the Civil Misc. Writ Petition No. 14499 of 1996, Ahmad Raza Khan, who filed an application under Order 1 Rule 10 of C.P.C. in the S.C.C. Suit No. 40 of 1992, approached the U.P. Sunni Central Waqf Board by filing the application for eviction of the plaintiff-Shrawan Kumar on the ground that Shrawan Kumar was the unauthorised occupant of the suit property which was also dismissed by the Controller, U.P. Sunni Central Waqf Board by order dated 15.5.1997. The relevant extract of the order dated 15.5.1997 is reproduced herein below : ''I have gone through the documents on file and have heard Smt. Sita Devi. Sri Ahmad Raza Khan did not appear at appointed time on 13.5.97. I heard him on 14.5.97. The relevant extract of the order dated 15.5.1997 is reproduced herein below : ''I have gone through the documents on file and have heard Smt. Sita Devi. Sri Ahmad Raza Khan did not appear at appointed time on 13.5.97. I heard him on 14.5.97. On perusal of file it transpires that at the time of registration, in the Registration Form, column No. 7 includes the entry of shop No. 168. But it could not be established beyond doubt that shop No. 168 is wakf property as the municipal extracts of Assessment of Nagar Palika, Etawah, 1955 shows that only shops No. 165, 167 and 166 form the wakf property and shop No. 168 was owned by Sonelal. As evident from the municipal extract, shop No. 168 was owned by Sri Sonelal and Vinay Kumar Gupta purchased this shop in an auction under Section 285 of Zamindari Abolition Rules. Vinay Kumar Gupta then sold it to Shrawan Kumar. This fact has also been corroborated by the District Magistrate, Etawah vide his letter No. 31/wakf-109, dated 21-3-97. Sri Ahmad Raza has given an application on 13.5.97 in which he has offered to pay back to Smt. Sita Gupta the amount her husband had paid to Sri Vinay Kumar Gupta. This also creates doubt about the genuineness of Ahmad Raza's claim that shop number 168 is correctly entered in the records as wakf property. If it is a wakf, why should he agree to pay anything to Smt. Sita Gupta? On the basis of above discussion and in the light of documents on record I find no reason to disbelieve the contention of Smt. Sita Gupta and hold that shop bearing municipal No. 168-A/1 and 168-A/2 does not form the part of wakf No. 109-Etawah. Hence, the same may be deleted from the records of the Board maintained under Section 37 of Wakf Act, 1955. Proceedings under Section 57-A of Wakf Act, 1960 (Corresponding to Section 54 of Waqf Act, 1995) against Shrawan Kumar and his heir, Sita Devi are dropped.'' 13. Thereafter, the Committee of Management of Waqf preferred Writ Petition No. 2948 (M/B) of 1997 against the order of the Waqf Board dated 15.5.1997 passed by the Controller, U.P. Sunni Central Board of Waqfs, Lucknow which was dismissed by this Court by judgment and order dated 26.8.1997. 14. Thereafter, the Committee of Management of Waqf preferred Writ Petition No. 2948 (M/B) of 1997 against the order of the Waqf Board dated 15.5.1997 passed by the Controller, U.P. Sunni Central Board of Waqfs, Lucknow which was dismissed by this Court by judgment and order dated 26.8.1997. 14. After aforesaid developments, the tenant-Abdul Gaffar filed an amendment application under Order 6 Rule 17 of C.P.C. on the ground that he was not aware of the correct facts at the time of filing the written statement and only after coming to know about the judgment of the Waqf Board brought on record by the petitioners that Vinay Kumar Gupta became the owner of the suit property by purchasing the suit property in an auction, and thereafter, the plaintiff-Shrawan Kumar became owner having purchased the suit property from Vinay Kumar Gupta, accordingly, he sought an amendment in the written statement that he accepts Shrawan Kumar as owner and landlord of the suit property and he may be permitted to deposit the rent of the suit property at the rate of Rs. 15/- per month. 15. By the said amendment, he also sought deletion of paragraphs Nos. 25, 26, 27, 30, 31, 32, 33, 34, 38, 42, 44, 47 and 49B from the written statement. 16. The aforesaid amendment application was rejected by the Trial Court by order dated 1.12.1997 on the ground that the tenant-Abdul Gaffar cannot be permitted to resile from his original case set up in the written statement and plead a new case. The Trial Court, thereafter, proceeded to decide the case. The Trial Court framed as many as six issues which are reproduced herein below : 17. The issues Nos. 1 and 4 were jointly decided by the Trial Court. While deciding the suit, the Trial Court recorded a finding that despite giving due opportunity of hearing to the respondent/tenant, he did not appear to argue the case. The Trial Court after appreciating the evidence on record held the plaintiff-Shrawan Kumar Gupta to be the owner and landlord of the suit property and decided the issue Nos. 1 and 4 in favour of the plaintiff-Shrawan Kumar Gupta. 18. The Trial Court after appreciating the evidence on record held the plaintiff-Shrawan Kumar Gupta to be the owner and landlord of the suit property and decided the issue Nos. 1 and 4 in favour of the plaintiff-Shrawan Kumar Gupta. 18. The Trial Court while deciding issue No. 2 has recorded a categorical finding that the notice sent by the petitioners terminating the tenancy was duly proved by the petitioners and since the notice was valid and there was the default in payment of rent as the respondent/tenant did not comply with the requirement of Section 20(4) of U.P. Act No. 13 of 1972, therefore, the tenant has defaulted in payment of rent. 19. Consequently, the Trial Court passed a decree of eviction and arrears of rent against the tenant from the date the sale-deed dated 23.4.1992 was executed in favour of the petitioners by the auction purchaser Vinay Kumar Gupta. 20. The respondent/tenant-Abdul Gaffar preferred a revision petition registered as S.C.C. Revision No. 1 of 2013 which was allowed by the Revisional Court by judgment and order dated 3.8.2013 on two grounds; that since in the present case, there is a dispute of title and the Trial Court has failed to consider the effect of the dismissal of Original Suit No. 6 of 1982 instituted by Vinay Kumar Gupta, the auction purchaser, against the State of U.P. and erstwhile owner Sone Lal Sharma for possession and the Trial Court does not have jurisdiction to decide the question of the title while exercising the power of Small Causes Courts Act and since these issues cannot be considered by this Court in exercising of revision power, therefore, this Court remands the matter to the Trial Court. 21. The second ground on which the matter was remanded was that it had come on record that original notice paper No. 15Ga was lost from the original record of the case and an inquiry in this regard was instituted, and therefore, the Trial Court should have waited for the outcome of the inquiry in respect of loss of original notice 15Ga. Accordingly, it concluded that since the original notice was not on record, therefore, it cannot be presumed that notice was duly served upon the tenant-Abdul Gaffar, therefore, the Trial Court fell in error in passing the judgment and decree against the settled principle of law. 22. Accordingly, it concluded that since the original notice was not on record, therefore, it cannot be presumed that notice was duly served upon the tenant-Abdul Gaffar, therefore, the Trial Court fell in error in passing the judgment and decree against the settled principle of law. 22. Challenging the aforesaid order, learned counsel for the petitioners has contended that the Revisional Court has erred in law in remanding the matter to the Trial Court. It is submitted that the Revisional Court has committed manifest illegality in setting aside the finding of fact recorded by the Judge Small Cause Court. It is submitted that the entire material was available on record, and the Revisional Court itself could decide the issues instead of remanding the matter to the Judge Small Causes Court. In this respect, learned counsel for the petitioners has placed reliance upon the judgment of Apex Court in the case of P. Purushottam Reddy and another v. M/s. Pratap Steels Ltd., AIR 2002 SC 771 . 23. He further submits that in a case of eviction and for recovery of arrears of rent, the Court has the power to see incidentally the question of title, and if the title is not seriously disputed and prima facie the Court finds that the title has been disputed by the tenant only to set up a defense, the Court in such circumstances can always incidentally see the question of title and if finds on the basis of material on record that plaintiff's title is perfect, the Court is not bound to refer the matter under Section 23 of the Provincial Small Cause Courts Act. In this respect, he has placed reliance upon the judgment of the Apex Court in the case of Budhu Mal v. Mahabir Prasad and others, 1988 (4) SCC 194 . 24. Lastly, he submits that one should not suffer for the fault of the Court. He submits that it has come on record that the original notice was filed by the petitioner and when the statement of P.W.-1-Smt. Sita Gupta was recorded, the original notice was on record, and counsel for the petitioner/plaintiff opened the notice in front of the Court which was duly proved by the statement of P.W.1, and the notice was subsequently, lost from the original record of the case, and the petitioners subsequently filed a photocopy of the notice. 25. 25. It is submitted that the notice was duly proved in accordance with law since at the time of the statement of P.W.1, the original notice was on record and the petitioner proved the same, and the statement of P.W.1 proving the notice has not been disputed by the D.W.1-Abdul Gaffar nor the respondent has disputed the fact that the envelope containing the notice was opened in the Court at the time of statement of P.W.1. In such view of the fact, loss of original notice from the original record subsequently did not prejudice the respondent, therefore, in such a case, the Trial Court has not committed any error of law in proceeding with the case inasmuch as the Trial Court did not need to wait for the outcome of the inquiry instituted in respect of loss of original notice. 26. Accordingly, it is submitted that the Trial Court has not committed any error in proceeding with the matter and deciding the case without waiting for the outcome of the inquiry, therefore, the Revisional Court has acted illegally and with material irregularity in concluding that since the original notice was not on record, therefore, it could not be held that notice was proved. In this respect, he has placed reliance upon the judgment of this Court in the case of Radhey Shyam v. Deputy Director of Consolidation and others, 2009(5) ADJ 626 . 27. Per contra, learned counsel for the respondents would contend that the writ petition filed by the petitioners is not maintainable for the reason that petitioners have impugned the order of remand and perusal of the same discloses that it is an order of open remand since the Revisional Court has not decided any issue by the impugned order, thus, the nature of order being an interlocutory order, the writ petition deserves to be dismissed. 28. He further submits that it is the plaint case that the respondent/tenant did not pay the rent since 1978 till the institution of the suit in the year 1992, and therefore, in view of Article 67 of the Indian Limitation Act, the suit having been filed after more than 12 years from the date the rent was due i.e. 1978, the suit is barred by limitation. 29. 29. He further submits that the Revisional Court has not committed any jurisdictional error in remanding the matter to the Trial Court since it was the duty of the Trial Court to have seen the effect of the dismissal of Original Suit No. 6 of 1982 instituted by Vinay Kumar Gupta against the State of U.P. and the erstwhile owner Sone Lal Sharma. In other words, he submits that if the earlier suit i.e. Original Suit No. 6 of 1982 for the same relief has been dismissed, the present suit i.e. S.C.C. Suit No. 40 of 1992 for the recovery of rent was not maintainable being barred by the principle of res judicata. 30. Lastly, he contends that the Revisional Court has rightly held that in the absence of original notice on record, the Trial Court could not have returned a finding about the validity of the notice, and in such view of the fact, the Trial Court should have waited for the outcome of the inquiry instituted by the District Judge to find out the reason for loss of original notice from the original record of the case. 31. I have considered the rival submissions of the parties and perused the record. 32. The Court has already detailed the facts of the case above, therefore, the facts are not required to be reiterated. Consequently, the Court proceeds to deal with the submission of learned counsel for the petitioners. 33. Now, the first question which arises for consideration in the facts of the present case is 'whether the Revisional Court was justified in remanding the matter to the Trial Court'. In this respect, it would be appropriate to reproduce paragraph 10 of the judgment of Apex Court in the case of P. Purushottam Reddy (supra) : ''10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41 of CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefore of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered preeminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event at any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila (AIR 1965 SC 365, at p.399), it is well-settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand de hors the Rules 23 and 23A. To wit the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20, Rule 3 or Order 11, Rule 31 of the CPC and hence it is no judgment in the eye of law it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.'' 34. The Apex Court in the case of Shivkumar and others v. Sharanabasappa and others, (2021) 11 SCC 277 , has succinctly explained in paragraphs Nos. 26.3 to 26.5 of the judgment the prerequisite for passing the remand order. Paragraphs Nos. 26.3 to 26.5 of aforesaid judgment are reproduced herein below : ''26.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23-A of Order 41 is not complete without reference to the provision contained in Rule 24 of Order 41 that enables the appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the appellate Court proceeds on a ground entirely different from that on which the trial Court had proceeded. 26.4. 26.4. A conjoint reading of Rules 23, 23-A and 24 of Order 41 brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an appellate Court is to follow the mandate of Rule 24 of Order 41 CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a retrial is considered necessary that the appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the trial Court may not be considered proper in a given case because the first appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. 26.4.1. The decision cited by the learned counsel for the appellants in the case of Mohan Kumar v. State of M.P., (2017) 4 SCC 92 , is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The trial Court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. The trial Court partly decreed the suit while holding that the plaintiffs were the owners of the land in dispute on which trespass was committed by the respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the appellant. Such part of the decree of the trial Court was not challenged by the defendants but as against the part of the decision of the trial Court which resulted in rejection of the claim of the appellant for allotment of an alternative land, the appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the appellant but proceeded to dismiss the entire suit with the finding that the appellant-plaintiff had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale-deed. In the given circumstances, this Court observed that when the High Court held that the appellant was not able to prove his title to the suit land due to nonexamination of his vendor, the proper course for the High Court was to remand the case to the trial Court by affording an opportunity to the appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for retrial was made out particularly when the trial Court had otherwise held that the appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where retrial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill-up the lacuna in its case. 26.5. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill-up the lacuna in its case. 26.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of trial Court are reversed and a retrial is considered necessary by the appellate Court.'' 35. In the said judgment, the Apex Court has elaborately dealt with the scope of remand as contemplated under Order 41 Rule 23 of C.P.C. and Order 41 Rule 25 of C.P.C., and the Court has culled out two conditions on the existence of which the Court should remand the matter. Those conditions are: (i) the Trial Court disposed of the suit otherwise than on a preliminary point, and (ii) the decree challenged in appeal is reversed in appeal, and retrial is considered necessary. 36. The Apex Court further held that the Court has inherent power to remand the matter in a given case where justice so demands, but this power has to be exercised sparingly and with circumspection since an unwarranted order of remand gives the litigant an undeserved lease of life, and therefore, unless the justice demands, the Court should not remand the matter. 37. Now, applying the aforesaid principle, this Court proceeds to examine whether the parameters which are essential for a Court to consider for remanding the matter are present in the facts of the present case or not. 38. In the instant case, the undisputed facts that emerge from the record are that the notice sent by the landlord terminating the tenancy of the tenant was met with the fate of refusal. 39. The envelope containing the notice was filed as paper No. 15Ga alongwith Fehrist 12Ga. When the statement of P.W.1 was recorded, the original notice was before the Court below and the envelope containing the notice 15Ga was opened by the counsel for the plaintiff before the Trial Court and he took out the notice from the envelop and placed the same before the P.W.1 who deposed before the Trial Court that it is the same notice which was sent to the tenant-Abdul Gaffar terminating the tenancy. The notice was duly proved, and thereafter, the original notice was lost from the original record. In such view of the fact, it is manifest from the record that the landlord proved the notice. 40. The notice was duly proved, and thereafter, the original notice was lost from the original record. In such view of the fact, it is manifest from the record that the landlord proved the notice. 40. The respondent/tenant had not disputed the fact that the original notice was opened before the Trial Court and it was lost after the recording of the statement of P.W.1. The respondent/tenant has not brought anything on record to establish that the original notice was lost before the statement of P.W.1 was recorded. 41. The statement of P.W.1 is not disputed, and therefore, after the notice was proved in accordance with the law, the Trial Court had to deliver the judgment on the basis of testimony on record. 42. At this stage, it is relevant to mention that subsequently, the photocopy of the notice was filed by the petitioners on record. The genuineness or correctness of the same was not disputed by the respondent/tenant as counsel for the respondent/tenant could not place before this Court anything on record disputing the correctness or genuineness of the photocopy of the notice filed by the petitioners. 43. It is also relevant to mention that since the original notice was opened before the Court below at the time of the statement of P.W.1 and it was lost later on, and a photocopy of the notice was filed on record subsequently and respondent/tenant did not dispute the fact that at the time of statement of PW1, the original notice was on record, therefore, in such view of the fact, this Court is of the view that the Revisional Court could itself have decided the issue about the validity of the notice instead of remanding the matter. 44. Since the original notice was taken out by the P.W.1 before the Court at the time of her statement and P.W.1 proved the notice which fact has not been disputed by the respondents, therefore, this Court concludes that the notice terminating the tenancy was duly proved and was a valid notice, and consequently, this Court affirms the finding of the Trial Court that notice terminating the tenancy was duly proved and tenancy of respondents was terminated by a valid notice. 45. 45. In the present case, the finding returned by the Revisional Court that the Trial Court should have waited for the outcome of the inquiry in respect of loss of original notice, in the opinion of the Court is misconceived for the reason that the law is settled that no one should suffer for the fault of the Court. In this respect, it would be apt to reproduce paragraph 10 of the judgment of this Court in the case of Radhey Shyam (supra) : ''10. The reconstruction of records can be made, under the inherent powers of the Court. It is the duty of the Court to ensure the reconstruction of a lost record. The instant case is, however, peculiar in the sense that the judgment, which was on separate sheets, is not available nor any copy thereof is available with either of the parties. However, it is not a case of total loss of the judgment inasmuch as in the undisputed order-sheet which stands recorded, the gist of the judgment and the operative portion thereof are intact. The separate-sheets containing the judgment of the Consolidation Officer are not available and no copy thereof is available as such, in such a situation it is almost impossible to reconstruct the said lost sheets of the judgment. The Court, even, in its inherent powers cannot, therefore, create something which cannot be reconstructed in such a peculiar situation. However, the Court, in its inherent powers can proceed in order to arrive at the truth of the matter for which no hard and fast rule can be enunciated. This would be dependant upon the facts and circumstances of each case, as has been observed in the case of Ram Khelawan (supra).'' 46. So far as the second ground of remand that the Trial Court ought to have seen the effect of judgment and decree passed in the Original Suit No. 6 of 1982 is concerned, this Court may record that all the evidences was on record before the Revisional Court and the Revisional Court only had to see the effect of the judgment and decree passed in Original Suit No. 6 of 1982 in the present case which is a pure question of law, therefore, in the opinion of the Court, on this ground also, the remand order by the Revisional Court is erroneous and based on a misconception of law. 47. 47. Thus, for the aforesaid reason, the ingredients for remand are lacking in the present case, therefore, the Revisional Court has erred in law in remanding the matter. 48. In such view of the fact, the submission of learned counsel for the respondent/tenant that the order of remand is an open order of remand and being interlocutory, the writ petition is misconceived and is devoid of merit. 49. This Court has already held above that the Trial Court has rightly proceeded with the matter without waiting for the outcome of the inquiry. 50. Since the Revisional Court has not considered the effect of the judgment and decree passed in Original Suit No. 6 of 1982, therefore, this Court proceeds to consider the effect of the judgment and decree passed in Original Suit No. 6 of 1982. The copy of the plaint of Original Suit No. 6 of 1982 has been annexed as annexure 1 to the counter-affidavit. 51. Perusal of the plaint of Original Suit No. 6 of 1982 discloses that the suit has been instituted by Vinay Kumar Gupta against the State of U.P. and Sone Lal Sharma, the erstwhile owner of the suit property. In the said suit, the plaintiff had prayed for the following relief : 52. The plaint case of the plaintiff-Vinay Kumar Gupta was that he was an auction purchaser, and therefore, he became the owner of the suit property and since he was not given possession of the suit property, he was suffering the loss of Rs. 140/- per month and in the aforesaid backdrop, he sought the aforesaid relief. 53. From the pleading and prayers made in the Original Suit No. 6 of 1982 and the pleading and prayer made in the present suit i.e. S.C.C. Suit No. 40 of 1992, it is evident that the issues in the Original Suit No. 6 of 1982 are not directly and substantially in issue in the present S.C.C. Suit No. 40 of 1992. Further, the Original Suit No. 6 of 1982 was dismissed in default and was not decided on merit. 54. The principle of res judicata enshrined in Section 11 of the Code of Civil Procedure embarks that to apply the principle of res judicata, the matter directly or substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. 54. The principle of res judicata enshrined in Section 11 of the Code of Civil Procedure embarks that to apply the principle of res judicata, the matter directly or substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the former suit should have been decided on merits and the decision should have attained finality. In this respect, it would be apt to reproduce paragraph 38 of the judgment of Apex Court in the case of Prem Kishore and others v. Brahm Prakash and others, 2023 SCC OnLine SC 356 : ''38. The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial Court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional Court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit.'' 55. In the case of Shivashankar Prasad Sah v. Baikunth Nath Singh and another, AIR 1969 SC 971 , the Apex Court held that dismissal for default of an application filed by judgment debtor under Section 47 of C.P.C. resisting the execution of the decree is not a final decision of the Court after hearing the parties, therefore, does not operate as res judicata and he can raise that objection in the subsequent application filed by him. Paragraphs Nos. 4, 5 and 6 of the said judgment are reproduced herein below : ''4. We shall first take up the contention that the objection taken by the judgment-debtors' is barred by principles of res judicata. Though at one stage learned Counsel for the appellant-decree holders attempted to bring the case within Explanation 5, Section 11, Civil Procedure Code, he did not pursue that line of argument but tried to support his contention on the broader principles of res judicata. The real question for decision in this case is whether the dismissal of Misc. Cases Nos. 94 and 110 of 1959 for default of the judgment-debtors can be said to be a final decision of the Court after hearing the parties. Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the Court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact Rule 9, Order 9, Civil Procedure Code which in specific terms says that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai, (1890) 17 Ind App 150. The contention that the dismissal of a previous suit for default of the plaintiffs operates as res judicata in a subsequent suit in respect of the same claim was repelled by the Judicial Committee of the Privy Council in Maharaja Radha Parshad Singh v. Lal Sahab Rai, (1890) 17 Ind App 150. Therein the Judicial Committee observed thus : ''None of the questions, either of fact or law, raised by the pleadings of the parties, was heard or determined by the judge of the Shahabad Court in 1881; and his decree dismissing the suit does not constitute res judicata within the meaning of the Civil Procedure Code. It must fall within one or other of the sections of Chapter VII of the Code; in the present case it is immaterial to consider which, the severest penalty attached to such dismissal in any case being that the plaintiff cannot bring another suit for the same relief.'' 5. From this decision it is clear that the Judicial Committee opined that before a plea can be held to be barred by res judicata that plea must have been heard and determined by the Court. Only a decision by a Court could be res judicata, whether it be statutory under Section 11, Civil Procedure Code or constructive as a matter of public policy on which the entire doctrine rests. Before an earlier decision can be considered as res judicata the same must have been heard and finally decided-see P. Venkata Subba Rao v. V. Jagannadha Rao, (1964) 2 SCR 310 : ( AIR 1967 SC 591 ). 6. The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment-debtor had resisted the execution on one or more grounds, does not bar the further execution of the decree in pursuance of fresh execution petitions filed in accordance with law-see Lakshmibai Anant Kondkar v. Ravji Bhikaji Kondkar, 31 Bom. LR 400 : (AIR 1929 Bom 217). LR 400 : (AIR 1929 Bom 217). Even the dismissal for default of objections raised under Section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution- see Bahir Das Pal v. Girish Chandra Pal, AIR 1923 Cal 287 ; Bhagawati Prasad Sah v. Radha Kishun Sah, AIR 1950 Pat 354 ; Jethmal v. Mst. Sakina, AIR 1961 Raj 59 ; Bishwanath Kundu v. Smt. Subala Dassi, AIR 1962 Cal 272 . We do not think that the decision in Ramnarain v. Basudeo, ILR 25 Pat 595 : (AIR 1947 Pat 298) on which the learned Counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable.'' 56. Since the decision of Original Suit No. 6 of 1982 was not on merit, therefore, the principle of res judicata is not attracted, and the respondent cannot be given any advantage of the dismissal of the Original Suit No. 6 of 1982. 57. The law is also settled on the point that the Court can incidentally go into the question of title in the S.C.C. Suit and in this regard, it would be apt to reproduce paragraph 10 of the judgment of Apex Court in the case of Budhu Mal (supra) : ''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. 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 December 8, 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 applicants 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 relatiionshp of landlord and tenant, between Mahabir Prasad and the appellants which could not be revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated December 8, 1966. In that event, it may not be 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.'' 58. In the present case, the title of the petitioners had been denied by the respondents on the pretext that Vinay Kumar Gupta, the auction purchaser, instituted Original Suit No. 6 of 1982 against the State of U.P. and Sone Lal Sharma, the erstwhile owner of the suit property, praying for a decree of possession which was dismissed in default, and further, it is alleged by him that the suit property is a waqf property. Now, the question is whether the Trial Court was supposed to exercise the power under Section 23 of the Provincial Small Cause Courts Act to return the plaint to the Civil Court considering the dispute of title to be bona fide one or the title of the petitioner/plaintiff was disputed by the respondent/tenant only as a defense arises for consideration before this Court. 59. In the present case, it is manifest from the record that Original Suit No. 6 of 1982 was dismissed in default. Further, the Waqf Board filed an application in S.C.C. Suit No. 40 of 1992 which was rejected by the Trial Court. The S.C.C. Revision preferred against the order of the Trial Court rejecting the impleadment application was also rejected by the Revisional Court, and the Writ Petition No. 14499 of 1996 challenging the order of the Revisional Court as well as Trial Court rejecting the impleadment application of the Waqf Board was also dismissed. Thereafter, Ahmad Raza Khan, who filed an application under Order 1 Rule 10 of C.P.C. in S.C.C. Suit No. 40 of 1992, filed an application before the U.P. Sunni Central Waqf Board for eviction of plaintiff-Shrawan Kumar Gupta which was dismissed by the Controller, U.P. Sunni Central Waqf Board by reasoned order dated 15.5.1997, which order has already been extracted above, and against the said order, the Management Committee of Waqf preferred Writ Petition No. 2948 (M/B) of 1997 which was also dismissed by this Court by judgment and order dated 26.8.1997. 60. In the light of aforesaid facts, the respondent/tenant moved an application for amendment in the written statement which was rejected by the Trial Court by order dated 1.12.1997, the said fact proves that the title of the landlord was not disputed by the respondent/tenant bona fidely rather, it was a defense set up by the respondent/tenant to delay the disposal of the proceeding, therefore, Trial Court has not committed any error in entering into the question of title incidentally. 61. Now, so far as the submission of learned counsel for the respondent about the fact that the suit is barred by limitation by Article 67 of the Indian Limitation Act is concerned, the said argument on the face of the record is misconceived for the reason that Article 67 of the Indian Limitation Act prescribes limitation of twelve years when the tenancy is terminated. At this stage, it would be apt to reproduce Article 67 of the Indian Limitation Act : Description of suit Period of limitation Time from which period begins to run By a landlord to recover possession from a tenant. Twelve years When the tenancy is determined. 62. Learned counsel for the respondent though has vehemently contended that it is the plaint case of the respondent/tenant that he did not pay the rent since 1978 and the suit has been filed after more than 12 years from the date the rent was due, therefore, the suit is barred by limitation, but this argument of learned counsel for the respondent is fallacious on the ground that the period of limitation of twelve years will begin from the date tenancy has been terminated. 63. In the present case, learned counsel for the respondent could not demonstrate that the tenancy of the respondent was terminated in the year 1978. The Court has perused the plaint of Original Suit No. 6 of 1982 and could not find that any plea had been set up by Vinay Kumar Gupta, the auction purchaser, terminating the tenancy of the respondent. 64. Learned counsel for the petitioner has placed reliance upon paragraph 5 of the plaint of Original Suit No. 6 of 1982 which is reproduced herein below : 65. However, this Court is of the view that there is no pleading in paragraph 5 of the plaint of Original Suit No. 6 of 1982, extracted above, that Vinay Kumar Gupta, auction purchaser, had terminated the tenancy. It is pertinent to note that the tenancy of the respondent was terminated by the petitioners by notice dated 28.10.1992. The petitioner instituted Original Suit No. 40 of 1992 on 22.12.1992. Thus, the suit has been instituted by the petitioner within the period of limitation of twelve years from the date of termination of tenancy. 66. Thus, for the reasons given above, the impugned order cannot be sustained and is hereby set aside. The writ petition is allowed and the judgment of the Trial Court is confirmed. There shall be no order as to costs.