Back
1986 Supreme(All) 55
IN THE HIGH COURT OF ALLAHABAD
V. K. MEHROTRA
RAM LAXMAN - Appellant
Versus
J.C.BASS - Respondents
Civil Revn. 802 Of 1985
Decided On : 02/10/1986
AMBRISH KUMAR, R.N.BHALLA, RAKESH BAHADUR, S.N.VARMA, WAJAHAT HUSAIN KHAN
An order postponing the consideration of the applicability of a statute to a future date is not an order affecting the rights of the parties and hence not revisable under Section 25 of the Provincial Small Cause Courts Act.
Headnote:
PROVINCIAL SMALL CAUSE COURTS ACT - SECTION 25 - REVISION - ORDER POSTPONING CONSIDERATION OF APPLICABILITY OF U. P. ACT 13 OF 1972 - NOT AN ORDER AFFECTING RIGHTS OF PARTIES - NOT REVISABLE.
Fact of the Case:
Defendant in a suit for ejectment from a shop filed an application under O. IX, R. 13, C. P. C. which was allowed. The suit was decreed ex parte again after some adjournments and a second application under O. IX, R. 13, C. P. C. made by the defendant was allowed on Mar. , 1984. Thereafter, the case was adjourned on various dates for some reason or the other, mostly on account of the prayer made by the defendant, and on July 24, 1985 the application 79/c was moved. By this application the defendant prayed that the suit of the plaintiff be dismissed without entering into the merits of the case, inasmuch as, the provisions of U. P. Act 13 of 1972 were applicable to the building in question and on the allegations made in the plaint itself, it was apparent that it was so. Further, the plaintiff had not given out any reason contemplated by S. 20 of that Act for the ejectment of the defendant.
Finding of the Court:
The impugned order only postponed the consideration of the question whether U. P. Act 13 of 1972 would be applicable to the building in question till such time that evidence is led in the case. The fact as to whether evidence would be needed for determining this question or not is primarily left to be determined by the trial Judge. Moreso, in the circumstances of the present case where the case of the plaintiff, as given out in the plaint itself, is that the defendant was inducted as a tenant in pursuance of a compromise entered into between him and the plaintiff before this Court in an earlier litigation between them. The proviso to S. 20 (1) itself lays down that there will be no bar to a suit being filed for the eviction of a tenant on determination of his tenancy by efflux of time where tenancy was entered into in pursuance of a compromise between the parties recorded in a Court.
Issues: Whether the impugned order postponing the consideration of the applicability of U. P. Act 13 of 1972 was an order affecting the rights of the parties and hence revisable under Section 25 of the Provincial Small Cause Courts Act?
Ratio Decidendi: The impugned order did not hold that the provisions of U. P. Act 13 of 1972 were not applicable in the case. It only postponed the decision of that issue to a future date. By this order, in the state of allegations made in the plaint and those made in the application 79/c, it could not be said that the Court had declined consideration of the question whether the plaint deserved to be rejected under R. 11 (d) of O. VII, C. P. C. at the threshold.
Final Decision: The revision petition was dismissed as it did not fall within the ambit of Section 25 of the Provincial Small Cause Courts Act and the order being discretionary in character, the court was not inclined to intervene at that stage.
( 1 ) THIS application in revision under S. 25 of the Provincial Small Cause Courts Act has been filed by a defendant in a suit for his ejectment from a shop. The order impugned in the Revision is dt. Nov. 22, 1985. It reads thus :"case called out. Parties are present through their counsel. Heard them on 79/c moved by the defendant and its objection 80/c filed by the plaintiff. The question whether the building in question attracts the provisions of Act 13 of 1972 shall be decided by the evidence of the parties and not at this stage. Thus 79/c has no force and is rejected. Accordingly. . . sic. . . 80/c is disposed of. Fix 17-12-85 for final hearing. "
( 2 ) SUIT No. 425 of 1982 was filed on Nov. 11, 1982. The defendant had, eventually, to be served by publication. After repeated opportunities, the suit was decreed ex parte and the decree was put into execution. The defendant then made an application under O. IX, R. 13, C. P. C. which was allowed. The suit was decreed ex parte again after some adjournments and a second application under O. IX, R. 13, C. P. C. made by the defendant was allowed on Mar. , 1984. Thereafter, the case was adjourned on various dates for some reason or the other, mostly on account of the prayer made by the defendant, and on July 24, 1985 the application 79/c was moved. By this application the defendant prayed that the suit of the plaintiff be dismissed without entering into the merits of the case, inasmuch as, the provisions of U. P. Act 13 of 1972 were applicable to the building in question and on the allegations made in the plaint itself, it was apparent that it was so. Further, the plaintiff had not given out any reason contemplated by S. 20 of that Act for the ejectment of the defendant. Denying the allegations made in the application, the plaintiff filed his objection 80/c.
( 3 ) SECTION 25 of the Provincial Small Cause Courts Act says that the High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the record of the case and pass such order with respect thereto as it thinks fit.
( 4 ) IN the instant case, the suit is being tried by the Additional District Judge. The application in revision under S. 25 has, therefore, been made to this Court.
( 5 ) SRI W. H. Khan who has argued the case on behalf of the defendant with ability, has urged that it was incumbent upon the trial Judge to have considered the prayer contained in application 79/c in the first instance, without insisting upon the defendant filing his written statement in the case. He has urged that the assertions made in the application amount to saying that on the facts given out in the plaint itself it was beyond doubt that U. P. Act 13 of 1972 was applicable and further that in the absence of any ground for ejectment of the defendant permissible under that Act under S. 20 having been taken in the plaint, the plaint was liable to be rejected under O. VII, R. 11, C. P. C. His precise submission is that, inasmuch as, S. 20 (1) of U. P. Act 13 of 1972 prohibited the filing of a suit for the ejectment of a lessee except on any of the grounds mentioned in Sub-S. (2) of S. 20, the plaint was liable to be rejected under O. VII, R. 11 (d), C. P. C. Such rejection, if called for, is to be made at the outset in view of the dictum of a Full Bench of this Court in Jagannath Prasad v. Smt. Chandrawati, AIR 1970 All 309 and could not be postponed to a stage after the recording of evidence as was being done by the trial Judge in the instant case.
( 6 ) O. VII, R. 11, C. P. C. which dealt with the rejection of the plaint, provides in cls. (a) and (d) as under :-"11. Rejection of plaint.- The plaint shall be rejected in the following cases :- (a) where it does not disclose a cause of action; (b) and (c) X X X X X (d) where the suit appears from the statement in the plaint to be barred by any law. "
( 7 ) NORMALLY in cases covered by cls
