1. The plaintiff-respondent instituted a SCC Suit No. 4 of 2001 before the court of Civil Judge (Senior Division), Shahjahanpur for eviction and recovery of damages against the petitioner. It was alleged in the plaint that the petitioner was inducted as a licensee in the shop in dispute and the alleged licence of the petitioner was revoked by notice dated 20.2.2001 and when the petitioner did not vacate the shop, the instant suit was instituted for eviction and recovery of licence fee.
2. The petitioner filed a written statement and refuted the allegation of the plaintiff-respondent and claimed himself to be the tenant of the disputed premises. The parties also lead oral as well as documentary evidence in their support. The trial court by order dated 8.11.2005 dismissed the suit of the plaintiff. Feeling aggrieved and dissatisfied with the said judgment and order dated 8.11.2005, the plaintiff-respondent filed a revision under Section 25 of the Provincial Small Cause Courts Act, 1987 (in short "the Act"). The said revision was registered as SCC Revision No. 53 of 2005. The lower revisional court by judgment and order dated 25.3.2009 set aside the order passed by the trial court and decreed the suit of the plaintiff-respondent. The revisional court also upheld the contention of the plaintiff-respondent that the petitioner was merely a licensee of the disputed shop. Hence, the present writ petition.
3. Learned counsel for the petitioner has, inter alia, mainly argued that since the petitioner was treated as a licensee, the suit itself was not maintainable under the Act.
4. Per contra, learned counsel for the plaintiff-respondent has supported the impugned order passed by the revisional court and submitted that such plea was neither raised by the petitioner, before the trial nor before the revisional court, as such, the petitioner cannot be permitted to raise the said plea at this stage.
5. Heard the learned counsel for the petitioner, learned counsel for the respondent and perused the record.
6. From bare perusal of the record, it is evidently clear that the SCC Suit was filed by the respondent plaintiff against the petitioner for eviction and arrears of licence fee. The plaintiff respondent treated the petitioner as a licensee of the shop in dispute, as such, according to the plaintiff-respondent himself, there was no relationship of landlord and tenant between the parties and there was only a relationship of licensor and licensee between them.
In this connection, it is apt to extract Section 15 and Article 4 of the II Schedule of the Act as applicable in Uttar Pradesh, which runs as under;
"15. Cognizance of suits by Courts of Small Causes-- (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) ...................................
(3) ..................................
[Uttar Pradesh]-- In its application to the State of Uttar Pradesh, in S.15, for sub-Ss. (2) and (3), substitute the following sub-section, namely:-
"(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five thousand rupees shall be cognizable by a Court of Small Causes:
Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in this sub-section to five thousand rupees shall be construed as a reference to twenty five thousand rupees.
Explanation-- For the purpose s of this sub-section, the expression "building" has the same meaning as in Art. 4 in the Second Schedule"-- Uttar Pradesh Act 17 of 1991, S.6 (w.r.e.f. 15.01.1991)."
........................................
"II SCHEDULE Suits excepted from the cognizance of a Court of Small Causes [Uttar Pradesh]-- In its application to the State of Uttar Pradesh, for Cl.(4), substitute the following clause, namely:-
"(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but no including a suit by a lessor for the eviction of a lessee from the building after the determination of his lease, and for recovery from him of compensation for the use and occupation of that building after such determination of lease.
Explanation-- For the purposes of this article, the expression "building" means a residential or non-residential roofed structure, and includes any land (including any garden), garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof."-- Uttar Pradesh Act 37 of 1972, S.4 (w.e.f. 20.09.1972)."
7. From a perusal of the aforementioned provisions as contained under Section 15 and Article 4 of the Second Schedule of the Act, it is evident that only a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for recovery from him of compensation for the use and occupation of that building after such determination of lease is maintainable before the court of small causes.
8. In the present case, a bare perusal of the plaint clearly indicates that the petitioner has not been treated as a tenant but merely a liencesee and according to the plaintiff-respondent, the petitioner is merely a licensee of the said shop and consequently after revoking the licence, suit for eviction and recovery of damages has been filed damages by the plaintiff-respondent. Thus, according to the own admission of the plaintiff-respondent, landlord-tenant relationship did not exist between the parties. Therefore, the suit for eviction of a licensee, according to the provisions of Article 4 to II Schedule of the Act, is not maintainable and the Small Causes Court has no jurisdiction to entertain any such suit for eviction of a licensee.
9. Learned counsel for the respondent has relied upon the case of Dilip Murlidhar Lohiya Vs. Mohd. Azizul Haq Mohd. Abdul Haq, AIR 1990 Bombay 228, wherein it was held that suit for possession of the landlord against the licensee is maintainable in the small cause court and the small cause court has exclusive jurisdiction to entertain suit suit.
10. I am afraid to say that the said authority is not applicable in the present matter. The case of Dilip Murlidhar Lohiya (supra) relates to State of Maharastra wherein by way of amendment Section 26 of the Act was added which provided that suits or proceedings between licensors and licensees or landlords and tenants for recovery of possession of the immovable property and the licensee fee of rent, except those to which other Acts apply, to lie in Court of Small Causes. I am constrained to say that such amendment by the State of Maharashtra has not been made applicable to the State of Uttar Pradesh. Thus, suits against the licensee cannot be filed in the court of small causes in State of Uttar Pradesh wherein no such corresponding amendment has been made under the Act.
11. The petitioner has further relied upon the case of Shambhoo Shanker Awasthi Vs. Ram Gopal Tiwari, 2000 (1) ARC 670 to impress upon the Court that the present suit is maintainable against the licensee. I am afraid to say that the said authority is also not applicable in the present case. In the case of Shambhoo Shanker Awasthi (supra), the plaintiff had treated the defendant as his tenant although the defendant on the other hand had claimed that there existed no relationship of landlord and tenant between the parties. Therefore, the facts of the said case are not applicable to the present case and has no bearing upon the issue on hand.
12. Learned counsel for the plaintiff-respondent further submitted that the petitioner cannot be permitted to take the plea of jurisdiction for the first time in the writ petition as no such plea was ever taken by him before the courts below. In support of his contention, learned counsel for the plaintiff-respondent also referred to Section 21 CPC and has submitted that no objection should be allowed by Court unless such objection was taken in the Court of first instance at the earliest possible opportunity.
For ready reference Section 21 CPC is quoted below;
"21. Objections to jurisdiction.
1[(1)] No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.
2[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]"
13. From the bare perusal of the aforementioned provision it would be evident that where an objection is made as to the place of suing or with reference to pecuniary limits jurisdiction, the said plea, inter alia, shall not be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity.
14. In the present case, neither the petitioner has taken any objection to the territorial jurisdiction nor objection has been made to the competence of the trial court with regard to pecuniary limits of the jurisdiction, as such, the provision of Section 21 of the CPC will not be applicable in the present matter.
15. In view of the Section 15 read with Article 4 of the II Schedule of the Act, as applicable in Uttar Pradesh, the small causes court is barred from entertaining any suit for eviction against the licensee. Such suit can be filed on the regular side. Thus, the small causes court lacks inherent jurisdiction to entertain the suit for eviction against the licensee.
16. In this connection, it is relevant to refer to the decision of the Apex Court in the case of Balvant N. Viswamitra and others Vs. Yadav Sadashiv Mule (Dead) Through LRS. and others, (2004) 8 SCC 706 as follows;
"Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction non estand void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."
17. The apex court only recently in the case of Cantonment Board and another Vs. Church of North India on May 13, 2011 while following the aforementioned decision in the case of Balvant N. Viswamitra and others (supra) has held as follows;
"It is undoubtedly true that objection to the maintainability of a proceeding must be raised at the earliest but an objection that the authority did not have the jurisdiction to entertain the proceedings over the subject-
matter goes to the root of the proceeding. In a number of judgments, this Court has held that a defect, with respect to the lack of inherent jurisdiction is basic and fundamental and validity of such an order can be challenged at any stage, even in execution or in collateral proceedings (for reference see a judgment of a bench of three judges of this Court in Balwant N.
Viswamitra and others v. Yadav Sadashiv Mule (dead) through Lrs. [reported in (2004) 8 SCC 706] ."
18. Thus, in the present case also the small causes court did not have the jurisdiction to entertain the proceedings over the subject matter, as such, there was lack of inherent jurisdiction which goes to the root of the matter and strikes at the very authority of the court to pass a decree.
19. In view of the above discussions, the writ petition is, accordingly, allowed and the orders passed by the courts below are set aside. The trial court is directed to return the plaint to be presented to a court having jurisdiction to entertain the suit.
Order Date :- 28.7.2011 vinay