1. Heard Sri K.S.Rathor, learned counsel for the petitioner, Sri Sanjiv Singh, learned counsel for respondents No.2 and 3 and perused the record.
2. The petitioner is aggrieved by judgment and order dated 1.9.2001 (Annexure 8 to the writ petition) passed by Special Judge (Narcotics) II, Ghazipur whereby it has allowed landlord's S.C.C. Revision No.1 of 2001 after setting aside Trial Court's judgment dated 30.3.2001. It has decreed the suit filed by respondent-landlord which has resulted in ejectment of petitioner from accommodation in question.
3. The dispute relates to a house situated at Mohalla Chehallumpura, Ghazipur. The respondents No.2 and 3 preferred S.C.C. Suit No.49 of 1981 in the Court of Small Cause, Ghazipur vide plaint dated 5.5.1981 alleging that they are owners of disputed house and petitioner is a tenant therein but has committed default in payment of rent and therefore, she is liable for ejectment.
4. The case set up by respondents no.2 and 3 was that Sri Kashi Nath @ Kashi husband of petitioner was a tenant in lower portion of disputed building on a monthly rent of Rs.20/- which was enhanced to Rs.30/- in 1964. Besides house Tax and water tax, the aforesaid rent was paid by Sri Kashi Nath till May, 1978 when he fell ill and since thereafter rent has not been paid either by Sri Kashi Nath himself when he was alive nor after his death by the petitioner. Written statement was filed by petitioner contesting status of Sri Kashi Nath as tenant though his residence in disputed building was admitted. It was pleaded that Kashi Nath was never a tenant in accommodation and respondents no.2 and 3 were never landlords. No rent was ever paid. Sri Kashi Nath was occupying accommodation since beginning as its owner from the time of his father and after death, continued in his own rights. The property in dispute belong to one Kallu Rai Mahadev Ram and Sri Kashi Ram as well as respondents No.2 and 3 were the family members hence were residing in their own rights in the capacity of family members of Kallu Rai Mahadev Ram.
5. Besides above and other pleadings, service of notice determining tenancy was also disputed by petitioner. The suit, however, was decreed ex parte on 5.3.1982 whereagainst petitioner came in revision no.57 of 1982 which was allowed vide judgment dated 13.10.1983 and ex parte order was set aside by remanding the matter to the Trial Court to decide suit again. The Revisional Court's judgment dated 13.10.1983 was assailed by respondents No.2 and 3 in writ petition No.14293 of 1983 but the same was dismissed on 8.9.1998. This Court while dismissing writ petition of landlord clearly observed that Trial Court decreed the suit erroneously and illegally.
6. The petitioner thereafter raised a preliminary objection before Trial Court regarding its competence to proceed with the suit since it involves a title dispute and therefore, according to the petitioner it must have been tried by a regular Court. The petitioner requested the Trial Court to decide this question as a preliminary issue but this request was turned down by Trial Court vide order dated 21.12.1998. The petitioner challenged the aforesaid order before this Court in Writ petition no.51880 of 2000 but the same was dismissed. It is thereafter that the Trial Court could proceed to decide suit afresh and vide judgment dated 30.3.2001, dismissed it. It held that there is no relationship of landlord and tenant between the parties and therefore question of decreeing the suit for arrears of rent and ejectment does not arise. The respondents no.2 and 3 raised the matter in SCC Revision No.1 of 2001 which has been allowed by impugned judgment.
7. It is argued that there being a title dispute in respect to the building in question, the suit was beyond the ambit of jurisdiction of Small Cause Court and the impugned judgments are wholly without jurisdiction. The reference is made to Sections 15 and 23 of Provincial Small Causes Court Act, 1887 (hereinafter referred to as "Act, 1887").
8. Section 15 of Act, 1887 enumerates nature of cases which would be cognizable by Court of Small Causes. In other words Section 15 of Act 1887 deals with matters in respect whereof a suit would be cognizable by the Courts of Small Causes. In Section 15(3), as enacted originally, an amendment in State of U.P., for the first time was made in 1970 by "The Uttar Pradesh Civil Laws (Amendment) Act, 1970" (U.P. Act No. XIV of 1970) w.e.f. 8th April, 1970. Then came another amendment vide U.P. Act No. XXXVII of 1972, w.e.f. 20th September, 1972, whereby a proviso and explanation was added in sub Section 3 to Section 15. There was a minor amendment made in sub Section 2 and sub Section 3 by U.P. Act 57 of 1976 with respect to valuation. Lastly, there is one more amendment made by U.P. Act No. XVII of 1991 w.e.f. 15th January, 1991 whereby the existing sub Sections 2 and 3 have been substituted. However, for the present suit, amendment of 1991 is not relevant, since the suit was filed in May, 1981 vide plaint dated 5th May, 1981. Therefore, I am omitting reference of 1991 amendment in Section 15.
9. In nutshell, Section 15 as applicable in State of U.P. in 1981, when the suit in question was filed, reads as under:
"(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) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of civil nature of which the value does not exceed two thousand rupees shall be cognizable by a Court of Small Causes.
(3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a Civil nature of which the value does not exceed three thousand rupees shall be cognizable by a Court of Small Causes mentioned in the Order."
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 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 two thousand rupees shall be construed as a reference to five thousand rupees.
Explanation- For the purposes of this sub-section, the expression "building" has the same meaning as in Article (4) in the Second Schedule."
10. A reading of the above provision shows that sub-section 1 of Section 15 is exclusionary in nature, namely, it says what not shall be entertained by a Court of Small Causes. In other words, it talks of suits which are not cognizable by the Court of Small Causes. Second Schedule has 44 entries dealing with different kinds of suits which would not be cognizable by Court of Small Causes. Sub-section (2) thereof runs in positive language and provides, that, except what has been excluded in the Second Schedule, and also subject to provision of any enactment for the time being in force, suits of civil nature would be cognizable by a Court of Small Causes subject to pecuniary jurisdiction of two thousand rupees namely, if the valuation of the suit or value of the dispute raised in the suit exceeds two thousand rupees, it shall not be cognizable by a Court of Small Causes.
11. Sub-section (2) of Section 15, therefore, excludes some more kinds of civil suits from the jurisdiction of Court of Small Causes, namely, those barred or made non-cognizable under the provisions of any enactment for the time being in force.
12. Sub-section (3) of Section 15 empowers the State Government to enhance pecuniary jurisdiction of the Court of Small Causes up to Rs. 3,000/-. The proviso to Section 15(3) raises pecuniary jurisdiction of a Court of Small Causes in respect of suits by the lessor, for eviction of a lessee, from a building after determination of his lease, and for recovery of rent from him in respect of period of occupation during the continuance of lease or for compensation for use and occupation thereof after determination of lease, to the extent of Rs.5,000/-.
13. The language of provisions of statute as noticed above, makes it clear that the Legislature has laboured to specify the cases which shall not be cognizable by Courts of Small Causes when there is already a Court having jurisdiction to try such suits but in view of the Scheme of Act 1887 and Sections 15 and 16 of Code of Civil Procedure, it is clear that the Court of Small Causes is a Court of preferential jurisdiction and not of a exclusive jurisdiction. It cannot be said that a Civil Court on regular side lacks inherent jurisdiction to try suits of nature specified in Section 15(2) of Act 1887.
14. Section 15 of Act 1887 came to be considered before a Full Bench in Manzural Haq and another v. Hakim Mohsin Ali, A.I.R. 1970 All. 604. Though it was in the context of the question whether a decision given by a Court of Small Causes in a suit for arrears of rent will operate as res judicata in a suit filed later in the Court of Munsif for recovery of arrears of rent for a different period for ejectment. In this context, the Court considered the question whether the Court of Small Causes is a Court of exclusive jurisdiction and answered it in negative. In para 21 of the judgment of Hon'ble S.D. Khare, J. and para 52 of concurrent judgment of Hon'ble Jag Mohanlal Sinha, J., it has been clearly said that Court of Small Causes is not a Court of exclusive jurisdiction but it is Court of "preferential jurisdiction". This decision has been noticed and approved in respect of above legal proposition by Apex Court in Smt. Gangabai w/o Rambilas Gilda v. Chhabubai w/o Pukharajji Gandhi, A.I.R. 1982 SC 20=1982(1) SCC 4.
15. Having said so, I proceed to consider Article 4 Schedule II of Act 1887 as amended in U.P. A suit for possession of immovable property is barred but there is an exception again to bring a particular species of cases, namely, suits filed by a lessor for eviction of a lessee from a building after determination of his lease and for recovery from him, of compensation for the use and occupation of that building, after such determination of lease.
16. So far as Section 23 of Act, 1887, the issue regarding competence of Small Cause Court to adjudicate a dispute of title in the light of Section 23 of Act, 1887 is concerned, it has also been considered by the Courts time and again. A three Judge Bench of Apex Court in Budhu Mal Vs. Mahabir Prasad & Ors., AIR 1988 SC 1772 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."
17. 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.
18. 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.
19. To the same effect is the decision of this Court in Sheel Chand Vs. IInd A.D.J., Jhansi, 2006 (1) ARC 359.
20. In the present case, respondents No.2 and 3 claim that Kashi Nath, husband of petitioner, was tenant in building in dispute while it was seriously denied by petitioner. The property belong to one Kallu Rai Mahadev Ram and Sri Kashi Nath and respondents No.2 and 3, it is said, all were residing in building in dispute as family members of Sri Kallu Rai Mahadev Ram. It is in these circumstances unless it is shown that tenancy of petitioner's husband was created at any point of time, either by predecessor in interest of respondents No.2 and 3 or by respondents No.2 and 3 themselves, the Courts below could not have proceeded further. This issue could not have been decided unless and until pedigree of family of Sri Kallu Rai Mahadev Ram is examined and it is determined whether petitioner's husband and respondents no.2 were enjoying status of owner of property in dispute or co-owner or one of son was owner or co-owner and rest were tenant or licensee or whatever.
21. One thing cannot be disputed from the above that in order to grant relief to respondents no.2 and 3, Trial Court could not have proceeded further unless question of title raised by petitioner is proved or disproved, in one or the other way. That being so, it is not a case where dispute of title was merely incidental or ancillary or superficial. In fact both the courts below have not looked into the question whether plaint in the present case ought to have been returned in the light of Section 23 of Act, 1887 as interpreted by Apex Court and by this Court in various authorities, some of which have already referred hereinabove. The impugned judgments therefore cannot sustain.
22. In the result, the writ petition is allowed. The impugned judgment and order dated 01.9.2011 (Annexure No.8 to the writ petition) passed by Special Judge (Narcotics) II, Ghazipur as also that of Trial Court's dated 30.3.2001 are hereby quashed and the matter is remanded to the Trial Court to consider the question whether in the light of pleadings and evidence on record without deciding question of title, can relief be granted to the plaintiff and if not, it shall return the plaint so as to be presented in regular Court.
23. The Trial Court shall look into the matter, as directed above, expeditiously, and in any case within three months from the date of production of a certified copy of this order before it. The petitioner is also entitled to cost which I quantify to Rs.5,000/-(Rupees Five thousand only).
Order Date :- 5.12.2012 KA