JUDGMENT J. C. Gupta, J.
1. Heard Dr. R. G. Padia, learned counsel for the petitioner and Shri R. N. Singh, learned counsel for respondent No. 3.
2. The landlady-respondent No. 3 filed suit for ejectment against the petitioner on the grounds of default in payment of rent and of denial of title. The suit was contested by the petitioner, inter alia, on a number of grounds, the main ground being that the original landlady Fakia Bibi had left India for Pakistan in the year 1947 and she died there in the year 1953, so the property in question became Enemy Property and the same has vested in Central Government/Custodian. The trial court decreed the suit by the judgment dated 26.4.93 holding that the petitioner was liable to eviction as he failed to clear off arrears of rent despite service of notice of demand and that the petitioner was also guilty of disclaiming the title of the landlady. The petitioner preferred revision against the said judgment and the same was allowed by the revisional court by the order dated 20.8.97 and case was remanded to the trial court with the direction to decide the suit afresh in the light of observations made by the revisional court in its judgment. After the remand, on an application being moved, the custodian-respondent No. 4 was allowed to be impleaded in the case and written statement on his behalf was also filed wherein it was stated that under Section 8 of the Enemy Property Act, the property has vested in the Central Government. After the remand, the trial court did not proceed to record any further evidence and by the judgment dated 8.9.98 ordered the return of suit to be presented before the proper court in exercise of powers under Section 23 of the Small Causes Court Act. Aggrieved by this order, the landlady filed revision under Section 25 of the Small Causes Court Act and the same has been allowed by the impugned judgment dated 28.7.99.
3. Shri R. N. Singh. who appears for the contesting respondent No. 3 stated that this writ petition may be disposed of at the admission stage itself and he does not Intend to file counter-affidavit, accordingly writ petition is disposed of by this Judgment.
4. Dr. Padia, learned counsel for the petitioner raised two contentions before the Court. Firstly, that the order of the trial court dated 8.9.98 whereby suit was returned for presentation before the proper court was perfectly valid as intricate question of title was involved in the case which the Court of Small Causes was not competent to decide and the revisional court has unjustifiably Interfered in the discretion of the trial court. Secondly, it was urged that in any view of the matter if the revisional court was of the opinion that the trial court's order returning the suit for presentation before the proper court was unsustainable, it-ought to have remanded the case to the trial court for a decision on merits but the revisional court itself acted as a trial court and proceeded to record its own findings after appraisal of evidence and thus it exceeded its jurisdiction.
5. As far as the first ground of attack is concerned, this Court finds no merits in it. A bare perusal of Section 23 of the Small Causes Court Act makes it clear that in order to attract the same, the Court has to come to the conclusion that the relief claimed by the plaintiff in the suit depends upon proof or disproof of title to the immovable property involved, which such Court cannot finally adjudicate because the proceedings before the Small Causes Court are of summary nature and for determining the question of title, an elaborate enquiry is required which has to be left to be held by a competent court having jurisdiction for determining the said question. It will not be a correct proposition of law to say that the Court of Small Causes has no jurisdiction at all to go into the question of title, therefore, whenever the title of the plaintiff is disputed, the Judge Small Causes Court is bound to return suit for presentation before the proper Court. It has also the power to go into such question incidently for determining the real Issue before it. For this view, support may be had from the decision rendered in Writ Petition No. 22390 of 1991. Rakesh Kumar v. VIth Additional District Judge, decided on 7.4.98.
6. In the present case, the case of the plaintiff is that she is the landlady and the petitioner has been her tenant who has made himself liable for eviction on account of default committed by him in payment of arrears of rent. The relief thus claimed in the suit depends upon the proof or disproof of existence of relationship of landlord and tenant between the plaintiff and the petitioner and while going Into this question, it is always open for the trial court to go into the question of title incldently. If from the evidence brought on record by the parties, the Court finds that relationship of landlord and tenant between the plaintiff and the petitioner has not been established, in that eventuality, suit will have to be dismissed and no question for its return for presentation before appropriate Court will arise. However. If the Court finds that without an elaborate enquiry into the question of title, the issue regarding existence of relationship of landlord and tenant cannot conveniently be decided, it has the power not to proceed with the case further and order its return under Section 23 of the Small Causes Court Act. If we go through the order of the trial court. It will be found that suit has been ordered to be returned after the same was remanded by the order of revisional court, merely on the ground that a question of title was involved. At another place, the learned Judge observed that there was no prima facie proof of existence of relationship of landlord and tenant between the parties. It was, therefore, argued by Dr. Padia that in such a situation, the suit should have been dismissed. Shri R. N. Singh, learned counsel for the respondent, however, contended that without having further evidence as per the direction contained in the remand order of the revisional court, the trial court was required to take evidence of the parties and there was no occasion for the trial court either to have ordered return of the suit or to make the observations as have been pointed out by the petitioner's counsel. The argument of Sri R. N. Singh carries weight. Without taking any further evidence, the trial court very conveniently avoided disposal of case on merits by taking recourse to Section 23, though there was neither any need nor necessity to exercise power under that provision at this stage of the proceedings. If after taking evidence of the parties and on examination thereof, the Court still finds that the issue of existence of relationship of landlord and tenant cannot be decided one way or the other without making an elaborate enquiry Into the question of title, the Court will not be precluded from exercising the power under Section 23 and in ordering return of suit for presentation before civil court on regular side. The impugned order of the revlsional court setting aside the order of the trial court ordering return of plaint in the circumstances of the case cannot be said to be illegal or without Jurisdiction.
7. Coming to the second submission of Dr. Padia, I find sufficient force therein. The revlsional court, after setting aside the order of the trial court whereby suit was ordered to be returned for presentation before the proper court proceeded to decree the same without noticing that the trial court has not recorded any finding either on the question of default or on denial of title, by taking the view that on an earlier occasion, the trial court had recorded findings on both these Issues and though the case was remanded by the re visional court to the trial court for a fresh decision, these findings were not set aside. Learned counsel for the parties took me through the remand order of the revisional court dated 20.8.97 whereby revision was allowed and the order dated 26.4.93 of the trial court decreeing plaintiffs suit was set aside and case was remanded to the trial court for deciding the same afresh. In the body of judgment, the learned Judge himself observed : The finding of the trial court has to be set aside because without setting it aside, the trial court cannot pass any finding against it till that finding is in existence". These observations leave no room of doubt that the revisional court had set aside the findings of the trial court and desired that the trial court should record findings afresh without being influenced by earlier findings. The later revisional court was thus wrong in assuming that the findings recorded by the trial court before the remand were left Intact and affirmed in the remand order, but the position is otherwise. Once the earlier findings recorded by the trial court were set aside specifically by the revisional court while remanding the case, they stood erased from the record and were of no avail. The revisional court thus committed a gross manifest error of law in making use of those dead findings and decreeing the suit on their basis. When no fresh findings of fact had been recorded by the trial court on the relevant Issues involved in the case because of the fact that the trial court erroneously ordered return of suit under Section 23, the revisional court should have remanded the case to the trial court for a decision on those issues once it came to the conclusion that the order passed by the trial court under Section 23 was not sustainable. The order of the revisional court, therefore, also is not sustainable.
8. The resultant effect of all the discussion made above is that both the orders dated 28.7.99 passed by respondent No. 1 as well as the order dated 8.9.98 passed by Judge, Small Causes Court will have to be set aside and they are accordingly quashed and the case is remanded to the trial court with the direction that it shall decide the case afresh in accordance with law and in the light of the observations made above in the body of this judgment. Since the matter has become quite old, the trial court shall proceed with the hearing of suit expeditiously on priority basis and shall make every endeavour to conclude the same as expedltiousty as possible, preferably within a period of three months from the date a certified copy of this order is produced. The trial court will also ensure that no unnecessary adjournment is allowed to either of the parties or their counsel.
9. Writ petition is accordingly disposed of with no order as to costs.