J.B. MOTORS Vs. HEMLATA KAPOOR

JUDGEMENT

(1.) Heard Mr. Shreyas Srivastava, learned counsel for the petitioner-defendant and Mrs. Rama Goel Bansal along with Ms. Shailini Goel, learned counsel appearing for the respondents-plaintiffs.

(2.) Brief facts of the case are that respondents-plaintiffs have instituted a Small Cause Suit No.3 of 2016 before the Judge, Small Cause Court, claiming themselves to be the landlord of the property in question. The respondents-plaintiffs are claiming their title through Mr. Harish Chandra Kapoor, the late husband of respondent no.1 and late father of respondent no.2. The property in question is part and parcel of a huge portion of land situated at 189, Civil Lines, District Bareilly. One S.C.C. Suit No. 4 of 2020 was instituted by one Mr. Darab Shah in the court of Judge, Small Cause Court, District Bareilly, impleading Sri Anoop Chaddha as the opposite party which was decided on the basis of compromise. In S.C.C. Suit No.3 of 2016, original petitioner-defendant (J.B. Motors) put in appearance and filed application under Order 11 Rule 16 of the Civil Procedure Code (for short "C.P.C."), seeking production of document / title by original plaintiffs- respondents before the Judge, Small Cause Court. The petitioner/defendant filed his written statement, denying the ownership of the plaintiffs-respondents in respect to the property in question. Replication was filed on 8/3/2022 by the plaintiffs-respondents. Plaintiffs-respondents filed an application dtd. 20/2/2023 (paper no.67C) under Order 15 Rule 5 of the C.P.C., praying for striking off the defendant's-petitioner's defence. The petitioner-defendant filed his objection dtd. 17/3/2023 to the application under Order 15 Rule 5 of the C.P.C. The petitioner-defendant also filed an application under Sec. 23 of the Provincial Small Cause Court Act, 1887 (for short the "Act"). The plaintiffs-respondents filed their objection to the application filed by the petitioner-defendant under Sec. 23 of the Act and the Judge, Small Cause Court Act vide order dtd. 19/4/2023 dismissed the application filed by the plaintiffs-respondents, recording finding of fact that defendants are the owner of the property in question, as such, they cannot be accepted to pay the rent of the accommodation/property in question. The plaintiffs-respondents challenged the order of the Judge, Small Cause Court dtd. 19/4/2023 by way of revision under Sec. 25 of the Act. The aforementioned revision was numbered as S.C.C. Revision No.28 of 2023. The revisional court vide impugned order dtd. 1/5/2025, set aside the order of the Judge, Small Cause Court dtd. 19/4/2023 and remanded the matter back before the Judge, Small Cause Court for fresh consideration of the application under Order 15 Rule 5 of the C.P.C. Hence, this petition under Article 227 of the Constitution of India for the following reliefs:-

(3.) Counsel for the petitioner-defendant submitted that the Judge, Small Cause Court has rightly exercised his jurisdiction in rejecting the application filed under Order 15 Rule 5 of the C.P.C. at the instance of plaintiffs-respondents but the revisional court has illegally set aside the order of the Judge, Small Cause Court and remanded the matter back to decide the application under Order 15 Rule 5 of the C.P.C. afresh. He submitted that the petitioner is the owner of the property in question which is the subject matter of S.C.C. Suit No.3/2016 on the basis of registered sale deed dtd. 2/9/2011 executed by Mr. Darab Shah and Others. He submitted that the plaintiffs- respondents are claiming title through Mr. Harsh Chandra Kapoor who was the power of attorney holder of Mr. Darab Shah and Others, as such, the plaintiffs-respondents cannot be treated as the owner of the property in question. He submitted that the provision of striking of the defence under Order 15 Rule 5 of the C.P.C. is discretionary and directory in nature, as such, the jurisdiction exercised by Judge, Small Cause Court in rejecting the application under Order 15 Rule 5 of the C.P.C. cannot be interfered with by the revisional court in exercise of jurisdiction under Sec. 25 of the Act. He submitted that the plaintiffs-respondents in their plaint, have categorically stated that rent was being paid to Mr. Darab Shah till 31/3/2011, i.e., before execution of registered sale deed dtd. 2/9/2011, as such, the plaintiffs-respondents cannot become owner/landlord of the property in question in view of the registered sale deed executed in favour of the petitioner- defendant. He submitted that the impugned revisional order should be set aside and the order passed by the Judge, Smal Cause Court, rejecting the application under Order 15 Rule 5 of the C.P.C. filed by plaintiffs-respondents should be maintained. He placed reliance on the following judgments of Hon'ble the Apex Court and that of this Court in support of his arguments:-