SAHID AHMED Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition is directed against the order passed by the Revisional Court in J.S.C.C. Revision No. 243 of 1988, whereby the petitioners-tenant have challenged the order passed by Judge, Small Causes in a suit filed by the respondent-landlord.

(2.) The facts leading to filing of the present writ petition are that Mukhtar Ahmed and his wife filed suit against the petitioners-tenant and their predecessors, which was decreed by the trial court on 22.9.1988 after rejecting the objection raised by the tenant-petitioners that there is no relationship of landlord and tenant between the plaintiff and defendant and, therefore, the suit is not entertainable by the Judge, Small Causes Court in view of Section 23 of Provincial Small Cause Courts Act. The trial court has gone into that question and arrived at the conclusion after discussing the evidence led by the parties that there is relationship of landlord and tenant between the plaintiff and defendant and provisions of U. P. Act No. 13 of 1972, are applicable to the accommodation in dispute and therefore, suit was decreed as stated above. Aggrieved thereby, the petitioners-tenant preferred a revision. The revisional court affirmed the findings of the trial court that there is relationship of landlord and tenant between the plaintiff and defendant and defendant is defaulter in payment of rent and the defendant has not claimed benefit of Section 20 (4). The suit was, therefore, rightly decreed and the contention of the defendant that the trial court should have returned back the plaint to be presented before the appropriate court is not correct. This view of the courts below finds support from the law laid down by this Court as well as the Hon'ble Supreme Court as hereinafter discussed,

(3.) In these circumstances, the suit cannot be said to be barred by Section 23 of Provincial Small Cause Courts Act and laid down by this Court in AIR 1990 All 169, confirming the findings. The revisional court rejected the revision. Now the petitioner has challenged the aforesaid two orders before this Court and reiterated the arguments, which were raised before the two courts below particularly with regard to the maintainability of the suit in view of the provisions of Section 23. Section 23 has been stalled out and this Court has held as stated in the case referred to above that merely because an objection has been raised that there is no relationship between the landlord and tenant, it cannot be said that the suit is barred by Section 23. Learned counsel for the petitioner has relied upon a decision of Apex Court in Budhu Mal v. Mahabir Prasad and Ors., 1988 AWC 1057, para 10 of which is reproduced below : "10. 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 were 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. In case the plea set up by the appellants that by the deed dated 8th December, 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. Sulochana 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 8th December, 1966. In that event it may not be possible to treat the suits filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simplicitor based on contract of tenancy in which an issue of title was incidentally raised. If the suits cannot be construed to be one between landlord and tenant they would not be cognisable 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."