The discretionary nature of the power under Section 23 of the Act for return of the plaint and the finding that any decision on the issue of title recorded by the Small Cause Court would not operate as res judicata in a title suit.

In this writ petition filed by the defendant/tenant challenge has been made to the order dated 9.10.2012 passed by the Additional Judge, Small Cause Court, Allahabad rejecting her application under Section 23 of the Provincial Small Cause Courts Act, 1887 (in short "the Act") and the revisional order thereto dated 12.2.2013 passed by the Additional District Judge, Allahabad.

2. The dispute is regarding bungalow No.11, Kanpur Road, Allahabad. Plaintiff/respondent is claiming ownership over it by virtue of free hold deed dated 29.3.2004. On the other hand, the defendant/petitioner claims that there is a dispute of ownership and certain other persons, namely successors of K.B.Garg are claiming ownership over the same in connection with which civil suits between the parties are pending. Even the free hold deed dated 29.3.2004 is the subject matter of challenge in one of the suits.

3. The courts below have refused to return the plaint for presentation to the regular civil court as the petitioner accepts herself to be the tenant and the above free hold deed dated 29.3.2004 is a document of title evidencing the ownership of the plaintiff/respondent.

4. I have heard Sri Saurabh Raj Srivastava, learned counsel for the petitioner and Sri Ashish Kumar Singh, learned counsel for the respondent.

5. It has been argued that there is a serious dispute regarding the title of the plaintiff/respondent over the above property which is pending consideration in Original Suit No.274 of 2004 (Smt. Ravi Bala Garg and others Vs. Smt. Tabassum Gazala) and there is also an injunction suit No.388 of 2003 (Smt. Ravi Bala Garg and another Vs. Saiyyad Javed Haider and others). Secondly, the defendant/petitioner in view of the aforesaid title suit pending is depositing the rent under Section 30(2) of the U.P. Act No.13 of 1972. The acceptance of her application by the Court amounts to acknowledging the title dispute between the parties relating to the above property.

6. A glance at the application 28-Ga of the defendant/petitioner reveals that it has been drafted in a very casual and cursory manner. It only states that there is no privity of relationship of landlord and tenant between the parties and, therefore, the Small Causes Court has no jurisdiction and the suit is barred by Section 23 of the Act. It does not contain any detail on the basis of which the title of the plaintiff/respondent is said to be in doubt or disputed.

7. The grounds urged herein or in the courts below have not been taken in the application. Therefore, it is difficult to order the return of the plaint on the basis of averments made in the application.

8. Notwithstanding the above, in none of the suits pending in the civil court, any person other than the plaintiff/respondent has so far been held to be the owner/entitle to the above property. No order has been passed in any suit staying the operation of the free hold deed dated 29.3.2004. The injunction order, if any, is restraining the parties from alienating the property and it is on the basis of such interim injunction that it is being contended that the free hold deed could not have been executed or that some other persons had a preferential right of getting the sale deed in their favour on the basis of some agreement and the decree of the specific performance but the fact remains that till date no other persons has been recognised as the owner of the said property by any court of law and, at the same time, free hold deed in favour of the plaintiff/respondent has not been declared to be illegal, null, void. It has not been cancelled or revoked.

9. In view of the free hold deed dated 29.3.2004, the plaintiff/respondent, as on date, is the owner of the property and she is entitle to receive rent as there is no material to indicate that any other person has been authorised to receive rent on her behalf. As such, she is also the landlord entitle to receive the rent.

10. In the above situation, when the defendant/revisi