A.F.R.

Reserved on : 04.05.2022

Delivered on : 30.05.2022

Case :- S.C.C. REVISION No. - 60 of 2022

Revisionist :- Dinesh Kumar

Opposite Party :- Smt. Asha Agarwal And Another

Counsel for Revisionist :- Rahul Sahai

Hon'ble Neeraj Tiwari,J.

Heard Sri Rahul Sahai, learned counsel for revisionist.

Present revision has been filed for setting aside the

judgment/order dated 07.04.2022 passed by Additional District

Judge Court No. 1, Mathura in SCC Case No. 01/2017 (Smt.

Asha Agarwal and another vs. Dinesh Kumar), and/or to allow

the application 74Ga of the revisionist.

Learned counsel for revisionist submitted that earlier

SCC Suit No. 01 of 2017 was filed by the plaintiff-opposite

party No.1, upon which revisionist-defendant has preferred

written submission and replica has also been filed. Accordingly,

considering the written submission, issues were framed on

06.03.2018. It is next submitted that to decide the SCC Suit, it

is necessarily required to frame additional issues with regard to

title as well as landlordship. Therefore, revisionist-defendant

has moved application under Section 23 of The Provincial

Small Cause Courts Act, 1887 (hereinafter referred to as ‘Act,

1887’) numbered as 74-Ga, which provides return of plaints in

suits involving questions of title. The said application has been

rejected by the Court below on the ground that after completion

of evidence and during the course of arguments, just to linger

on the proceeding, the application was moved. It is also

observed in the impugned order that while deciding the case, if

required, additional issues would be framed. It is further

submitted that under Order XIV Rule 5 of Code of Civil

Procedure, 1908 (hereinafter referred to as ‘Code, 1908’), it is

required that before passing a decree, Court may amend the

issues or frame additional issues on such terms as it thinks fit,

but in the impugned order, it is observed that while delivering

the judgment, if required, Court may frame additional issues,

which is contrary to the provisions of Code, 1908. In support of

his contention, he has placed reliance upon the judgment of

Apex Court in the matter of Rameshwar Dayal vs. Banda

(dead) through his L.Rs. And another; ARC 1993 (1) 249. He

has also relied upon the judgments of this Court in the matters

of Vikas Pawar vs. Smt. Tara Rani and another; 2005 (1) ARC

196 and Satish Chandra Agarwal vs. Ashok Jaiswal ; 2016 (2)

ARC 605.

I have considered the submissions advanced by learned

counsel for revisionist and perused the impugned order,

provisions of law as well as judgments relied upon.

Revisionist-defendant has filed application under Order

XIV Rule 5 of Code, 1908 for framing of additional issues,

which was rejected. Issue before the Court is to decide as to

whether the proceeding of SCC Court shall be governed under

the provisions of Order XX of Code, 1908 or Order XIV of

Code, 1908 and application under Order XIV, Rule 5 of Code,

1908 is maintainable or not.

Present proceeding of suit is governed by the provisions

of Act, 1887 as well as Code, 1908 and Section 17 of Act, 1887

provides applicability of Code, 1908. Relevant provisions of

Act, 1887 and Code, 1908 are quoted below:-

Act, 1887

“17. Application of the Code of Civil Procedure.—

(1) 1[The procedure prescribed in the Code of

Civil Procedure, 1908 (5 of 1908), shall, save in so

far as is otherwise provided by that Code or by this

Act,] be the procedure followed in a Court of

Small Causes in all suits cognizable by it and in all

proceedings arising out of such suits:

2

Provided that an applicant for an order to set aside

a decree passed ex parte or for a review of

judgment shall, at the time of presenting his

application, either deposit in the court the amount

due from him under the decree or in pursuance of

the judgment, or give [such security for the

performance of the decree or compliance with the

judgmen