A.K. Yog, J.@mdashOne Behta Ram filed suit for ejectment and recovery of arrears of rent and mesne profit by filing J.S.C.C. Suit No. 105 of 1977 on the facts stated in the plaint of the said suit.
2. The Defendant denied plaint allegations and alleged that plaintiff fraudulently got a saledeed executed in his favour and another Original Suit No. 58 of 1998 was pending in the Court of Shahjahanpur, regarding title and ownership of the accommodation between the parties. At one stage, Judge, Small Causes Court vide its order dated May 12, 1978 directed the plaint to be returned for presentation before regular Court as question of title was involved, but the said order was set aside in Revision No. 32 of 1978. Judge, Small Causes Court, therefore, proceeded; to decide the suit on that basis.
3. Perusal of the judgment and order dated 24111981 (Annexure 2) shows that defendant alleged that the Judge, Small Causes C0urt should not proceed as the Original Suit regarding title was subiudice and pending before the Hon''ble High Coutt . The Judge, Small Causes Court after considering evidence on record decreed the suit.
4. Feeling aggrieved, defendant filed S.C.C. Revision No. 60 of 1981, which has been finally dismissed by impugned judgment and order dated 24th November, 1981.
5. The aforementioned judgment and order dated 24th November, 1981 (Annexure 2) passed by Revisional Court and judgment and order dated 27th July, 1981 (Annexure 1) passed by Judge, Small Causes Court have been challenged by filing present petition praying that the aforesaid two orders may be quashed.
6. It may, however, at this place, be noted that the petitioner has not impleaded Judge, Small Causes Court as one of the respondents.
7. List has been revised. No one appears on behalf of the parties.
8. I have perused the impugned judgments and orders as well as averments contained in the writ petition. I find that only ground Nos. II and III require investigation and none of the other grounds warrants interference under Article 226, Constitution of India. For purpose of convenient perusal, ground Nos. II and III are reproduced below:
"(II) Because the respondent No. 1 acted illegally and arbitrarily in passing the impugned order on''''. ic grounds that there was no order by this Hon''ble Court staying the proceedings of the revision notwithstanding the fact that the suit giving rise to revision pending before him was not subjectmatter of the second appeal filed by petitioner which is still pending.
(Ill) Because the Courts below have committed error of law in assuming the jurisdiction on the basis of the fact that the petitioner had moved an application claiming benefit of Section 20(4) of the Act although it had been clearly mentioned in the said application that the deposits had been made by him under protest or in other words it had nowhere been admitted that there exists relationship of landlord and tenant between the parties."
9. The question of title is distinct to the question of status, as ''Landlord''. Question of title is involved in Second Appeal No. 1141 of 1980. It is indicated that defendant has been disputing the validity of sale deed dated August 30, 1968 on the ground that saledeed was executed by way of security and it was not intended to transfer ''title''.
10. At the time of admission of the writ petition, learned Single Judge had called for the record of said Second Appeal No. 1141 of 1980. The record of Second Appeal is also before me and I have perused the same. In view of the above, approach adopted by the two Courts below cannot be approved.
11. As far as another ground is concerned, the petitioner filed a copy of application dated 16th April, 1981 (Annexure 3 to the petition). Perusal of the said application shows that Courts below were not justified in ignoring the deposits.
12. In view of the above, the judgments and orders dated 24th November, 1981 (Annexure 2) and 27th July, 1981 (Annexure 1) suffer from manifest error apparent on the face of record and the same are set aside. J.S.C.C. Suit No. 105 of 1977 is remanded back with the direction that the same shall be decided after decision of Second Appeal No. 1141 of 1980 or any other subsequent final judgment. The trial Court shall also determine the subsisting deposits under Section 20(4) of the Act. The writ petition is allowed. No order as to costs.
