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IN THE HIGH COURT OF ALLAHABAD
J. C. Gupta, J.
RAKESH KUMAR - Appellant
Versus
VITH ADDITIONAL DISTRICT JUDGE, BULANDSHAHR - Respondents
C. M. W. P. 22390 Of 1991
Decided On : 04/07/1998
SMALL CAUSE COURTS ACT, 1887 - SECTION 23 - JURISDICTION OF SMALL CAUSE COURTS - RETURN OF PLAINT - TITLE TO IMMOVABLE PROPERTY - INTERPRETATION - COURT'S DISCRETION - SUMMARY PROCEDURE.
Fact of the Case:
Plaintiff filed a suit for ejectment and recovery of arrears of rent and damages for use and occupation of disputed shops, claiming ownership through a registered sale deed. Defendants pleaded that the plaintiff's predecessors-in-interest were not the sole owners and that the sale deed was invalid. The trial court rejected the defendants' application to return the plaint under Section 23 of the Small Cause Courts Act, 1887, finding that no intricate question of law was involved. The revisional court allowed the defendants' revision petition and ordered the return of the plaint.
Finding of the Court:
The High Court held that the revisional court erred in ordering the return of the plaint. The court found that the grant of relief depended on the proof or disproof of the rights claimed by the plaintiff, not on the proof or disproof of title to the property. The court noted that the defendants had not disputed paying rent to the plaintiff's predecessor-in-interest and that the correctness of the defense case and its effect on the plaintiff's right were yet to be determined by the trial court. The court held that the trial court had the power to go into the question of title incidentally to determine the real issue before it and that the jurisdiction of the Small Cause Court was not ousted merely because the defendants raised a defense of other co-sharers.
Issues: 1. Whether the Small Cause Court had jurisdiction to try the suit involving the question of title to immovable property. 2. Whether the trial court erred in rejecting the defendants' application to return the plaint under Section 23 of the Small Cause Courts Act, 1887.
Ratio Decidendi: 1. Section 23 of the Small Cause Courts Act, 1887, empowers the court to return the plaint when the right of the plaintiff and the relief claimed depend on the proof or disproof of title to immovable property which the court cannot finally determine. 2. The purpose of Section 23 is to enable the court to save time by returning the plaint involving an elaborate inquiry of an intricate question of title. 3. The court has the discretion to return the plaint under Section 23, but it is not mandatory. 4. The court should consider whether the question of title is so intricate that it should not be decided summarily and whether it can be conveniently decided in a summary manner. 5. In the present case, the court found that the question of title was not so intricate that it could not be conveniently decided in a summary manner and that the trial court had the power to go into the question of title incidentally to determine the real issue before it.
Final Decision: The High Court allowed the writ petition, set aside the order of the revisional court, and restored the order of the trial court. The trial court was directed to proceed with the suit expeditiously according to law.
( 1 ) THIS is landlords petition challenging the validity of the order dated 29. 5. 1991 passed by respondent No. 1 (Annexure-7 to the writ petition ). By the said order, revision filed by respondent Nos. 3 and 4 has been allowed and the lower revisional court has ordered that the petitioners plaint be returned for presentation before the proper Court under Section 23 of the provincial Small Cause Courts Act, 1887 (hereinafter referred to as the Act ).
( 2 ) THE facts encompassing the controversy are that the petitioner filed suit for ejectment and recovery of arrears of rent and damages far use and occupation of the two disputed shops with the allegation that he has become owner-landlord of the disputed shops after having purchased the same from previous owners Smt. Athar Zamani Begum and Smt. Ashfaq Zamani Begum through a registered sale deed dated 15. 10. 79. Before the said transfer, defendant No. 1 used to pay rent to Smt. Athar Zamani Begum exclusively and she was landlady of the respondents tenant. After the sale deed aforesaid, the plaintiff has stepped into her shoes and is entitled to realise rent from the said defendant. The plaintiff served him with a notice demanding rent but the same was not paid. Hence suit was filed after determination of tenancy in accordance with law.
( 3 ) BOTH the defendants filed a joint written statement, inter alia pleading that Smt. Athar Zamani begum and Smt. Ashfaq Zamani Begum were not the sole owners of the shops in question as there were other co-sharers. However, names of the alleged co-sharers were not disclosed by the defendants in their written statement. It was further pleaded that as there are other co-sharers of the disputed shops. Smt. Athar Zamani Begum and Smt. Ashfaq Zamani Begum had no legal right to transfer the shops in question and the sale deed alleged to have been executed in favour of the petitioner was not valid. It was further pleaded that the shops in question were the property of Riyasat Jahangirabad which were occupied on rent by the defendants and Smt. Athar Zamani begum used to realise rent on behalf of all the co-sharers of Riyasat Jahangirabad and she was not the sole landlady of the disputed shops. In para 12 of the written statement, the defendants, however, pleaded that they have never denied the title of Smt. Athar Zamani Begum and Smt. Ashfaq Zamani Begum or the title of the plaintiff-petitioner, rather they have simply stated the fact that there are other co-sharers of the said property.
( 4 ) THE case proceeded in the Court of Judge Small Causes and after when the plaintiff evidence had been recorded, an application 85b was moved from the defendants side stating therein that since question of title as regards property in question was involved in the suit, the plaint was liable to be returned under Section 23 of the Act for presentation before the proper Court. The petitioner filed objection to that application. The trial court took the view that no intricate question of law was involved and as the evidence of defendant was yet to be recorded, the question whether there existed any relationship of landlord and tenant between the parties could be answered conveniently after the evidence of the parties was over. With these findings, the trial court rejected the defendants application 85b by the order dated 4. 2. 89. Aggrieved by this order, respondent Nos. 3 and 4 preferred S. C. C. Revision No. 44/89 which was allowed by respondent No. 1 by the impugned order and the plaint was ordered to be returned to the plaintiff-petitioner for presentation before the proper court.
( 5 ) DESPITE time having been allowed, no counter-affidavit has been filed by respondent Nos. 3 and 4 though they are represented by Sri P. K. Srivastava.
( 6 ) WHEN this writ petition came up for hearing, none appeared on behalf of respondent Nos. 3 and 4 and only learned counsel for the petitioner has been heard.
( 7 ) LEARNED counsel for the petitioner Sri Sunil Kum
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