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IN THE HIGH COURT OF ALLAHABAD
J. C. Gupta, J.
MUSHIR KHAN ALIAS MASSHAN - Appellant
Versus
XIITH ADDL.DISTRICT JUDGE, MORADABAD - Respondents
C. M. W. P. 13530 Of 1990
Decided On : 07/09/1999
SMALL CAUSE COURTS ACT, 1887 - SECTION 23 - JURISDICTION - SUIT FOR RENT AND EJECTMENT - RETURN OF PLAINT - QUESTION OF TITLE - INCIDENTAL DETERMINATION - POWER OF COURT.
Fact of the Case:
In a suit for rent and ejectment, the defendant claimed that he was not a tenant but in possession pursuant to an agreement to sale. The trial court ordered the return of the plaint under Section 23 of the Small Cause Courts Act, 1887, holding that it lacked jurisdiction to determine the question of title. The revisional court set aside the trial court's order and remanded the case for decision on the merits.
Finding of the Court:
The High Court held that the revisional court had not committed any manifest error of law in setting aside the trial court's order. The court noted that Section 23 of the Small Cause Courts Act permits the return of a plaint at any stage of the proceedings if the court finds that the question of title cannot be answered in a summary way and requires an elaborate enquiry. The court further held that the trial court could incidentally go into the question of title set up in defense while examining the question of the existence of a landlord-tenant relationship between the parties.
Issues: Whether the trial court erred in ordering the return of the plaint under Section 23 of the Small Cause Courts Act, 1887.
Ratio Decidendi: The High Court held that the trial court erred in ordering the return of the plaint under Section 23 of the Small Cause Courts Act, 1887. The court held that the question of title was incidental to the question of the existence of a landlord-tenant relationship between the parties and that the trial court could have gone into the question of title while examining the question of the existence of the landlord-tenant relationship.
Final Decision: The High Court dismissed the writ petition and directed the trial court to proceed with the suit expeditiously and decide it within a period of four months.
( 1 ) HEARD Sri K. K. Arora learned counsel for the petitioner and Sri M. S. Haq for the contesting-respondents.
( 2 ) BY means of this writ petition a prayer has been made to quash the order dated 12. 2. 90 passed by respondent No. 1 in revision filed against the order of the trial court dated 30. 5. 88.
( 3 ) SINCE counter-affidavit has been filed, in the peculiar circumstances of the case this writ petition is disposed of finally at the admtsslon stage itself.
( 4 ) THE facts in brief are that the deceased respondent No. 3 filed suit for rent and ejectment against the petitioner and respondent No. 2 claiming that rent was due from 23. 9. 1983 which was not paid despite service of notice of demand and termination of tenancy. The petitioner is defendant No. 2 in the said suit and his defence was that there was no relationship of landlord and tenant between him and the plaintiff. According to his case, the owners of the disputed house were Mohd. Naseem and others and in one part of the property, the defendant No. 2 was the tenant. Mohd. Naseem filed Suit No. 137 of 1982 with the allegation that the entire property was under the tenancy of Hidayatullah which was decided in terms of compromise on 31. 1. 85 and in pursuance of the said decree Hidayatultah handed over possession of his share to Mohd. Naseem. It was further alleged that on 31. 1. 85 Mohd. Naseem and others executed an agreement to sale in favour of Smt. Khatoon Begum wife of the defendant-petitioner and also handed over vacant possession to her. In short, the case of the defendant-petitioner is that he is in possession of the property in question not as a tenant but in pursuance of the agreement to sale. A plea was also taken that the suit was barred by Section 23 of the Provincial Small Cause Courts Act. A preliminary issue was framed whether the court of Small Causes has no jurisdiction to try the suit. The trial court by the order dated 30. 5. 88 decided the said issue against the plaintiff and ordered the suit to be returned for presentation before proper court. Aggrieved by the said order, respondent-landlord filed revision which has been allowed by the impugned order and case has been sent back to the trial court for deciding the same in accordance with law. Aggrieved, this writ petition has been filed.
( 5 ) DURING the pendency of this writ petition, respondent No. 2 expired and, therefore, substitution application was moved by the petitioner to bring on record his legal representatives which application was allowed by this Court by the order dated 22. 8. 95 vide order passed on the substitution application. Respondent No. 3 also expired during pendency of writ petition and his legal representatives have also been brought on record and they are represented by Sri M. S. Haq.
( 6 ) SRI K. K. Arora learned counsel for the petitioner argued before the Court that once trial court had exercised discretion in ordering return of plaint for presentation before the proper court, The revisional court was not justified in reversing the said order. After examination of record, this court finds no substance in the submission of the learned counsel for the petitioner.
( 7 ) THERE can be no dispute that on Small Cause side only suit for rent and ejectment by a lessor against lessee after determination of lease is maintainable and all other suits for recovery of possession based on title are cognizable on regular side. Section 23 makes it clear that in order to attract the same, the Court in which the suit has been filed, if comes to the conclusion that the relief claimed by the plaintiff in the suit depends upon proof or disproof of title to the Immovable property involved in the suit, which such court cannot finally determine, it may at any stage of the proceedings return the plaint to be presented before an appropriate court having jurisdiction to determine the title because the proceedings before the Small Cause Court are of summary in nature and for dete
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