Shishir Kumar, J.@mdashThis writ petition has been filed for quashing the order dated 24.7.2008 passed by Additional District Judge, Court No. 12, Lucknow in SCC Suit No. 36 of 2007 (Mohammad Irshad v. M. Naseem) as well as for quashing the judgment and order dated 19.3.2007 passed by respondent No. 2, Judge, Small Causes Court, Lucknow rejecting the application under section 23 of the Provincial Small Causes Courts Act in SCC Suit No. 64 of 2000.
2. The facts arising out of the writ petition are that SCC Revision No. 64 of 2000 was filed by respondent No. 3 being a landlord against petitioner for recovery of rent and ejectment. A written statement was filed, subsequently, the same was amended and denied the title of the plaintiff in respect of shop in question and claimed that defendantpetitioner is in possession of the shop in question along with adjacent shop (in the tenancy of his brother) and owner of the said both shops in the Lucknow Development Authority and defendant has clearly alleged that plaintiff is not the owner and landlord of the building No. 47/3/1 Vidhan Sabha Marg, Lucknow and defendant is not the tenant in the shop No. 6 of Building No. 47/3/1 and actually owner of whole property No. 47/3 is the property of Lucknow Improvement Trust, Uttar Pradesh, Lucknow, managed and controlled by the Board and actually its landlord is the Lucknow Development Authority and the plaintiff being an employee of the Improvement Trust, Lucknow for the realization of the rent was authorised to realize the rent and after filing the suit the defendant has paid a sum of Rs. 31, 500/ to the plaintiffrespondent. The premises in question is built on Plot Nos. 7, 8 and 9 situated at Station Road, Husainganj, Lucknow and that has been purchased by the real brother of the defendant. This fact has clearly been stated in the amended written statement. From the perusal of the written statement, it clearly appears that property does not belong to plaintiffrespondent (Annexure 1 to the written statement) dated 22.3.2002 issued by the Deputy Secretary, Lucknow Development Authority with a proposal that the lease hold land whose owner is Lucknow Improvement Trust was given to patta to Maharaj Kumar, Mohd. Amir, Haider Khan and matter is sub judice in Second Appeal No. 271 of 1973. Prior to execution of sale deed in favour of the brother of the defendantpetitioner, an application was filed before the Trial Court for return of the plaint to the plaintiff Mohd. Naseem exercising the power under section 23 of the Provincial Small Causes Courts Act on 9.11.2005. An objection was filed and complete document was also annexed disputing the title of the defendantrespondent, as such, the Court below should have rejected the plaint or to return it under section 23 of the Act. But the Trial Court rejected the application vide its order dated 19.1.2004 taking into consideration judgment in M/s. Rakesh & Company v. M.S. Hiralal and Sons, 2002 (1) SCC 214.
3. A revision was filed but the same has also been dismissed vide its order dated 24.7.2008.
4. It has been submitted by the learned Counsel for the petitioner that as from the record, it was clear that plaintiffrespondent is not the landlord and has got no title over the property in question, therefore, suit for recovery of arrears of rent and ejectment was not maintainable. Both the Courts below have not taken into consideration the sale deed in question filed by petitioner, which clearly goes to show that it was given on lease and that was terminated later on and at last a litigation has been started and the second appeal is pending. Reliance has been placed upon a judgment of the Court in Smt. Kela Devi and others v. Rameshwar Dayal, 1982 (1) ARC, 149. Relying upon the aforesaid judgment, learned Counsel for petitioner submits that in case, the tenant disputes the title of the plaintiff as landlord, the said question is beyond jurisdiction of the Judge, Small Causes Court and section 23 is attracted. Further reliance has been placed upon a judgment of the Court in Virendra Prasad Shukla v. Ram Swaroop and others, 1983 ARC 179. Placing reliance upon the aforesaid judgment, learned Counsel for petitioner submits that in case the title of the landlord is disputed, then Judge, Small Causes Court will have no jurisdiction to decide the suit filed by the plaintiff.
5. On the other hand, learned Counsel for respondentlandlord submits that initially written statement was filed, there was no denial by petitioner regarding title of the answering respondents. Subsequently, by way of amendment, the same has been done. Further it has been submitted that this controversy has already been settled by this Court as well as by the Apex Court that the question of title raised in the suit before the Judge, Small Causes Court is an incidental question, which Small Causes Court could consider. The Courts below were justified to that effect entertaining the suit filed under the Judge, Small Causes Court. A finding has been recorded while rejecting the application filed by petitioner dated 19.3.2007 that from the perusal of the order dated 19.1.2004, it clearly appears that an application filed on behalf of petitioner under Order XV, Rule 5 was rejected. A revision was filed and in the revision, a finding has been recorded that as whether the question of title was involved or not, it could only be seen after hearing both the parties on the basis of evidence. Therefore, at this stage after a lapse of three years, this cannot be seen and the same has already been decided in Revision No. 11 of 2004. The Revisional Court has also considered the same and rejected the contention of the applicant.
6. After hearing both the parties at length and after perusal of the record, it clearly appears that suit was filed in the year 2000 against the petitioner. A written statement was filed in 2003 but there was no denial of title of plaintiffrespondent. It was subsequently by way of amendment, title has been denied. It appears that defence of the petitioner was struck of under Order XV, Rule 5. A revision was filed and Revisional Court has recorded a finding that unless and until this question is decided because it was disputed by petitioner and it will be seen by the Court. The application for rejecting or return the plaint regarding maintainability of the suit before the Small Causes Court was filed about five years after the suit was filed. Therefore, in that circumstances, the application was rejected holding therein that it is an incidental question, which can be considered by the Judge, Small Causes Court. In Shamim Akhtar v. Iqbal Ahmad and another, 2001 (42) ALR 131 (SC) the Apex Court has considered the issue and in paragraph 12 of the judgment, it has been held that it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Causes Court to determine finally the title to the property. The tenantrespondent by merely denying the relationship of landlord and tenant between himself and the plaintiff cannot avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions of section 23 (1) of the Small Causes Courts Act. Relevant para 12 is being quoted below:
"12. The Trial Court in the facts and circumstances of the case clearly erred in returning the plaint to the plaintiffappellant under section 23 (1) provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depends 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. The power vested under subsection (1) in the Court is discretionary. It is to be exercised only when the relief claimed by the plaintiff in the proceeding before the Small Causes Court depends upon the proof or disproof of a title to the immovable property and the relief cannot be granted without determination of the question. In the present case, as noted earlier, the plaintiff filed a petition for eviction under section 20 (2) (f) alleging that she had inducted respondent No. 1 as tenant of the premises. The question was whether that case was to be accepted or not. Indeed, the Trial Court, at the first instance, had accepted the plaintiff''s case holding, inter alia that she had got the property by a registered deed of gift from Smt. Khairunnisa Bibi who in turn had been gifted the property by her mother Fakia Bibi who, indisputedly was the original owner of the property. The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the Competent Court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Causes Court to determine finally the title to the property. The tenantrespondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act. That is neither the language nor the purpose of the provisions in section 23 (1) of the Small Causes Courts Act."
7. In Budhu Mal v. Mahabir Prasad and others, AIR 1988 SC 1772 the Apex Court has held 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 for the suit of eviction. The question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes Court in this behalf could not be res judicata in a suit based on title. Relevant para 9 is being reproduced below:
"9. 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. It 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 cught to have been returned for presentation to a Court having jurisdiction to determine the title. In case the plea set up by the appellants that by the deed dated 18.12.1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt. Sulochna Devi and that the said deed could not be unilaterally cancelled is accepted, it is likely not only to affect the title of Mahabir Prasad to realise rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant, between Mahabir Prasad and the appellants which could not be revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated 18.12.1966. In that event it may not be possible to treat the suit filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. If the suits cannot construed to be one between landlord and tenant they would not be cognizable by a Court of Small Causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to Appropriate Court so that none of the parties was prejudiced."
8. In Ram Deo v. Ram Naresh and others, 2006 (64) ALR 376 this Court after considering various judgments of this Court as well as Apex Court has taken the same view. The Judge, Small Causes Court is competent to decide the question of title incidentally, as it has been held in the judgment of Shamim Akhtar''s case (supra). However, the decision of question of title shall be subject to final decision by the Civil Court in a suit to be tried on regular side. In such situation, the Court below has rejected the application filed by the petitioner under section 23 of the Provincial Small Causes Courts Act. The main thrust of the argument raised by the learned Counsel for petitioner is that in view of section 23 of the Small Causes Courts Act, 1887, the Judge, Small Causes Court has no jurisdiction to decide the question of title raised by tenant. The Apex Court in Buddu Mal''s (supra) case as well as in Shamim Aktar''s (supra) case has held that in case if the landlord has filed a suit against his tenant on the basis of contract of tenancy, the question of title could also incidentally be gone into and that any finding recorded by the Judge, Small Causes Court in this behalf could not be a res judicata in a suit based on title. Admittedly, the suit is still pending for consideration.
9. In view of aforesaid fact and in view of section 23 of the Act, the Judge, Small Causes Court shall proceed to decide the suit in accordance with the law and also the question of title incidentally, if raised by the parties concerned. However, the decision in question of title shall be subject to final decision by the Civil Court.
10. In view of above, there is no merit in the writ petition.
11. The writ petition is devoid of merits and is hereby dismissed.
12. No order as to costs.
