JUDGMENT :

Sangeeta Chandra, J.

1. Heard Sri Ghufran Hussain, learned counsel for the petitioners and Sri Sudeep Seth, learned Senior Counsel assisted by Sri Pankaj Kumar Verma, learned counsel appearing for landlord.

2. This writ petition has been filed challenging the order dated 20.10.2020 passed by opposite party no. 1/ Additional District Judge, Court no. 2, Barabanki in Small Causes Revision No. 1 of 2019.

3. It is the case of the petitioners that the petitioners were the initially tenant of one shop situated at Malgodam Road, Haidergarh, District Barabanki of Sri Baldev Prasad Khare. Thereafter wife of petitioner no. 1 bought the shop in question from the grandson of Beldav Prasad Khare, the original landlord. The mother of respondent nos. 2 and 3 filed a suit for eviction before the Civil Judge (J.D.), Court No. 13, Barabanki on the ground that she is the owner of the disputed shop without disclosing the source of title and also mentioning the wrong boundaries of the tenanted premises.Petitioners appeared and filed the written statement denying the ownership of plaintiff and saying that they are not the tenants of the shop but had bought the property for Rs.50,000/- from Sri Arind Khare, the legal heir of the earlier owner and landlord. The opposite party no. 2 admitted the existence of saledeed dated 16.01.2013 executed by Arivind Khare, grandson of Sri Baldev Prasad Khare in favour of the wife of petitioner no. 1 when they filed the Suit for cancellation of sale-deed before learned Civil Judge (S.D.) Court no. 20, Barabanki. The Said suit is pending for disposal where the petitioner had filed written statement and order of maintenance of status quo has been passed therein on 08.03.2017.

4. It is the case of the petitioners, as argued by learned counsel for the petitioners that the petitioner no. 1 was doing parivi of SCC case and he became ill and was unable to contact his lawyer and the SCC Suit proceeded ex parte on 25.09.2017 and was ultimately decreed on 18.12.2017.

5. It has been argued by learned counsel for the petitioners that respondent nos.2 and 3 was duty bound to reveal before the Small Causes Court about the proceedings of Regular Suit no. 27 of 2015 and interim order granted therein on 08.03.2017 passed for maintenance of status quo. However, they concealed the interim order from the learned trial court as a result whereof the SCC suit was decreed in their favor.

6. It has been argued by learned counsel for the petitioners that SCC suit was not maintainable as the Court of Small Causes has no power to decide the intricate question of title and ownership and once the title and ownership was denied and tenancy was also specifically denied then SCC Court had no jurisdiction to decide the case. Also an interim order had been passed in Regular Suit No. 27 of 2015 and the suit for cancellation of sale-deed of was pending before civil court.

7. Learned counsel for the petitioners has placed reliance Section 23 of the provisions of Small Causes Court Act (herein after referred to as ‘Act’). To substantiate his arguments, it has been submitted that respondent nos. 2 has initiated criminal proceedings by filing an F.I.R. under Sections 406,419,420, 452,504, 506 I.P.C. Police Station Kotwali, against petitioner no. 1 and wife of petitioner no. 1 Smt. Sita Singh, who had bought the property in question. This fact shows that there was technical question of fact involving ownership and civil and criminal litigation were going on. The Small Causes Court should have returned the plea under section 23 of the Act.

8. It has been submitted that after the suit was decreed ex-parte, execution case was filed by respondent no. 2 and 3 and on receipt of summons of the execution case on 22.01.2019, the petitioners moved an application under Order IX Rule 13 of C.P.C. alongwith application for condonation of delay under Section 5 of the Limitation Act and also moved a separate application under Section 17 of the Act praying for recall of