1. Heard Sri M.N. Singh, counsel for the petitioner and Sri Anadi Krishna Narain for the respondent-landlord.
2. In all these writ petitions, the facts and questions of law are common therefore as requested by learned counsel for parties, are being decided by this common judgment.
3. In Writ Petition No. 43172 of 2005 (in short the "first petition"), the petitioner Ram Bharose Lal Verma has assailed the order dated 4th May, 2005 passed by District Judge, Etah, rejecting petitioner's application 13-C, dated 2.5.2005 as also S.C.C. Revision No. 6 of 2004 and directing for return of record of SCC Suit No. 04 of 1987 to Small Causes Court for expeditious disposal of suit. He has also assailed the order dated 20th January, 2005 passed by Small Causes Court/Additional Civil Judge, Senior Division, Court No. 18, Etah rejecting petitioner's application under Section 23 of Provincial Small Causes Court Act, 1887 (hereinafter referred to as Act 1887) for returning the plaint so as to be presented before appropriate regular Court.
4. In Writ Petition No. 45106 of 2007 (in short the "second petition"), similar orders are under challenge with the difference that Trial Court passed order on 7.11.2005 in SCC Suit No. 8 of 1991 and Revision was dismissed by Special Judge/Additional District Judge, Etah vide his judgment dated 10th July, 2007.
5. In Writ Petitions No. 49621 of 2005, 55116 of 2005 and 55118 of 2005 (in short the "third, forth and fifth petition" respectively) the orders under challenge are dated 13.05.2005 passed by Additional District Judge, Court No. 1, Etah in S.C.C. Suit No. 09 of 1991, Revision No. 41 of 1998 and Revision No. 42 of 1998, respectively, whereby he has dismissed petitioners' amendment applications.
6. Sri M.N. Singh, learned counsel for petitioners contended that there was a serious title dispute and hence the suit was not cognizable by Small Causes Court and the plaint have to be returned to the plaintiff so as to presented before the regular Court as provided under Section 23 of Act 1887. In the first petition, the dispute relates to a shop in respect whereof, the respondent No. 3 Ram Singh son of Munshi Lal filed SCC Suit No. 4 of 1987 for ejectment of petitioner-tenant on the ground of non-payment of rent and committing default. The petitioner tenant contended that there is a dispute of ownership of property between respondent Nos. 3 and 4 in first writ petition and therefore unless that issue is decided, the Small Cause Suit cannot be decided. He therefore prayed that the plaint should be returned since the question of title cannot be decided by a Small Causes Court. A similar dispute was raised in all the connected four writ petitions also, though the parties accommodating in dispute are different therein.
7. Both the Courts below have observed that Section 23 by itself does not oust the jurisdiction of Small Causes Court but provide that Small Causes Courts, where finds that the question of title must be decided in order to consider the grant of relief to the plaintiff, it may return the plaint so as to consider the said issue of title by the regular Court. It is not a complete bar of jurisdiction but it has to be seen by the Judge, Small Causes Court, whether the dispute of title is a substantive one or bogus. The mere existence of such a dispute would make no difference unless he finds that its adjudication is necessary for considering the grant of relief to the plaintiff.
8. The argument is based on Section 23 of Act 1887 and it would be useful to have a glance thereof which reads as under:
"23. Return of plaints in suits involving questions of title.-(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.
(2) When a Court returns a plaint under sub-section(1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Court shall, for the purposes of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction."
9. A bare reading of the provision shows that it gives an option to the Court to return the plaint to be presented to a Court having jurisdiction, to determine title, but before that it has to be satisfied that right of the plaintiff and the relief claimed by him depend upon the proof or disproof of a title to immoveable property.
10. Section 23 of Act, 1887, therefore, does not oust jurisdiction of Small Cause Court to decide the question of title outright. It has been repeatedly held that question of title cannot be finally decided in a Small Cause Suit, but it can be decided incidentally for the purpose of deciding the main issue, in a case, which otherwise is within the jurisdiction of the Small Cause Court.
11. Section 23 of Act, 1887 has been construed by a three judge judgment of Apex Court in Budhu Mal Vs. Mahabir Prasad and Ors., AIR 1988 SC 1772 and the Court said:
"It is true that Section 23 does not make it obligatory on the court of small causes to invariably return the plaint once a question of title is raised by the tenant. It is also true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. In cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title."
12. The Court has further said, if the suit cannot be construed to be one between landlord and tenant, that would not be cognizable by Court of Small Causes.
13. Again in Shamim Akhtar Vs. Iqbal Ahmed, AIR 2001 SC 1 the Apex Court said that the Small Cause Court is entitled to decide the question of title only incidentally and for the purposes of a suit, in between alleged landlord and alleged tenant but such decision is subject to the decision of the regular Civil Court.
14. To the same effect is the decision of this Court in Sheel Chand Vs. IInd A.D.J., Jhansi, 2006 (1) ARC 359.
15. In the present cases, the Courts below have found that, at this stage, there is no occasion to proceed to consider the matter as sought by the petitioners-tenants by referring to Section 23 and the application of tenant was neither bona fide nor was otherwise legally sustainable. I find thus no reason to interfere. The learned counsel for petitioners could not show any legal or otherwise error in the impugned judgments. No interference therefore is called for.
16. The writ petitions are, thus, dismissed. No costs.
Order Date :- 12.9.2012 Arun K. Singh