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IN THE HIGH COURT OF ALLAHABAD
J.J. MUNIR, J.
Dayaram - Petitioner
Versus
Shankar Lal Chaurasiya - Respondent
Matters Under Article 227 No. 1051 Of 2022
Decided On : 24-03-2022
For the Petitioner: Narendra Kumar Chaturvedi.
For the Respondent: Kaushalendra Nath Singh.
The nature of the tenancy and construction on the demised land should be determined at the trial stage with evidence, and objections to the court's jurisdiction should not be used as dilatory tactics.
Headnote:
Jurisdiction - Civil Suit - U.P. Act No. 13 of 1972 - Section 21(1)(a), Section 30, Section 15 of the Provincial Small Cause Court Act - [Jurisdiction] - [Civil Suit] - [U.P. Act No. 13 of 1972 - Section 21(1)(a), Section 30, Section 15 of the Provincial Small Cause Court Act]
Fact of the Case:
The plaintiff sought eviction of the defendant from a tin shed worked shop and underlying land, claiming arrears of rent and mesne profits. The defendant objected to the court's jurisdiction, arguing that the suit should be tried on the regular side of the Civil Court.
Finding of the Court:
The Court found that the defendant, by constructing a permanent shop with a tin shed roof on the demised land, was a tenant of a building, not just open land, and thus the Small Cause Court had jurisdiction to try the suit for eviction.
Issues: The main issue was whether the Small Cause Court had jurisdiction to try the suit for eviction based on the nature of the tenancy and the construction on the demised land.
Ratio Decidendi: The Court held that the nature of the construction and tenancy, whether of a building or open land, should be determined at the trial stage with evidence, and the defendant's objection to the court's jurisdiction was a dilatory tactic.
Final Decision: The petition was dismissed, and no interference with the lower courts' orders was warranted.
JUDGMENT :
1. This petition under Article 227 of the Constitution is directed against an order of the Additional District judge/Special Judge (P.C. Act) Court No. 2, Gorakhpur dated 11.10.2021 dismissing the Civil Revision No. 161 of 2017 and affirming an order dated 01.08.2017 passed by the Judge Small Cause Court in S.C.C. Suit No. 16 of 2015.
2. By the order last mentioned, the Trial Judge has rejected an application preferred by the defendant objecting to the Court's jurisdiction to try this suit and seeking a summary rejection of the plaint on the ground that the Trial Court lacks jurisdiction as per subject matter of the suit.
3. S.C.C. Suit No. 16 of 2015 has been instituted by Shankar Lal Chaurasia, the sole-respondent here and the plaintiff of the suit against Dayaram, the petitioner-defendant, seeking a decree of eviction against the tenant from the tin shed worked shop, a permanent construction and the underlying land together with a decree for arrears of rent and mesne profits.
4. According to the plaintiff's case set out in the plaint, the land underlying the shop detailed at the foot of the plaint was originally in the ownership of Mohan Sinha wherein the defendant was a tenant of Sinha at a monthly rent of Rs. 125/-. The defendant with the permission of Mohan Sinha put up a tin shed worked roof on Pucca walls bringing into existence a permanent construction wherein the defendant established his furniture shop. Mohan Sinha along with the land and the shop sold other properties to the petitioner through a registered sale deed dated 05.09.2000 and delivered the latter ownership possession. The defendant was informed verbally of the assignment as well as in writing through a notice dated 21.08.2000. In compliance, the defendant acknowledging the petitioner to be the landlord deposited some rent in Court under Section 30 of U.P. Act No. 13 of 1972 (for short 'the Act') vide Misc. Case No. 45 of 2000.
5. The plaintiff-respondent made an application for release under Section 21(1)(a) of the Act against the defendant-petitioner on the ground of bona fide need to set up his son, Anoop Kumar Chaurasia in independent business. The aforesaid release application was registered before the Prescribed Authority as P.A. Case No. 33 of 2010. It was decided against the petitioner on technical ground, where against an appeal being Rent Appeal No. 5 of 2014 is pending before the Appellate Authority. The plaintiff-respondent and the defendant-petitioner stand in the relationship of landlord and tenant but the defendant is in arrears since 05.09.2000. The tenancy is one from month to month, beginning with the first day of the English calendar month and ending with the last. Upon receipt of notice of assignment through registered sale deed dated 05.09.2000 in favour of the plaintiff-respondent by Mohan Sinha, the defendant-petitioner remitted by money-order up to the month of August 2009 the due rent but the defendant-petitioner is in default since the month of September 2009. He is in arrears ever-since.
6. The defendant-petitioner's tenancy was determined by the plaintiff vide registered notice dated 24.08.2015 issued by the plaintiff-respondent himself to the defendant-petitioner which was duly served. The defendant-petitioner answered the notice on incorrect premises vide his reply dated 22.09.2015. Despite notice to quit and demand for arrears of rent, the defendant-petitioner did not deliver vacant possession of the shop in question compelling the plaintiff-respondent to institute the suit for eviction, recovery of arrears of rent and mesne profits.
7. In the said suit, the defendant-petitioner has made an application dated 23.02.2017 bearing Paper No. 26C. The crux of the application is that the defendant had taken on rent from the former owner and landlord, Mohan Sinha open land whereon with Sinha's permission and consent he put up a tin shed worked shop. He is thus a tenant of open land and not a building. The suit would not b
