RAKESH KUMAR Vs. MADHU GUPTA

JUDGEMENT

(1.) Heard Sri Triloki Nath. learned Counsel for the revisionist and Sri A. K. Sachan advocate for the caveator-respondent.

(2.) This is a revision under Section 25 of the Provincial Small Causes Court Act against the Judgment and decree dated 29.10,2005 in S.C.C. Suit No. 7 of 2000. A supplementary-affidavit has been filed bringing on record the written statement filed on behalf of the revisionist. The plaintiff-respondent instituted a suit against the revisionist-tenant on the allegation that the plaintiff is landlord and the defendant is tenant of the shop at the rent of Rs. 500 per month. The tenant was liable to pay the house and water tax in addition to the aforesaid rent. A notice determining the tenancy and demanding arrears of rent, house tax and water tax was sent through the counsel and served on the defendant-respondent on 12.6.2000. The revisionist failed to pay the amount due and also did not vacate the premises in question hence the suit. A written statement was filed by the revisionist contending that the shop in question was taken on rent on 1.2.1991 from Smt. Shakuntala Devi at the rate of Rs. 200 per month and he continued to be tenant on the same rent. He is not aware if Smt. Shakuntala Devi has executed a sale deed in favour of the plaintiff. The rent was being paid to Smt. Madhu Gupta w.e.f. June, 1984 at the rate of Rs, 200 per month. The rent of Rs. 500 per month as claimed by the respondent was specifically denied. The reply to the notice was given where it was stated that the rate of rent was Rs. 200 per month and rent up to the year 2000 was paid to the plaintiff. It was further stated that the shop was situated on an agricultural land and, therefore, the suit was barred by Section 331 of U.P.Z.A. and L.R. Act and the Judge Small Causes Court had no jurisdiction to try the suit. The tenant also filed an application before the Court for issuance of Commission to ascertain whether the shop in question was situated on the agricultural plot. A copy of this application is annexed as Annexure-2 to the affidavit filed in support of the stay application, which was rejected on 18.10.2002. On 27.9.2004, the counsel for the revisionist-tenant was ill and, therefore, an adjournment application was moved praying to defer the cross-examination of the plaintiff witness. The Court refused to adjourn the case and asked the defendant-revisionist to enter the witness box for cross-examination. This was refused on the ground that since the counsel was not present, it was not proper for him to enter the witness box and once again made request to defer the cross-examination. This was once again refused and finally the suit was decreed on 29.10.2005 which is impugned in the instant revision.

(3.) The submission on behalf of the counsel for the revisionist is that he was not given appropriate opportunity to defend his case. Besides, it is submitted that the question of jurisdiction has not been adjudicated and, therefore, the judgment is liable to set aside. The question of jurisdiction was decided by a separate order on 18.10.2002. A copy of the said order is annexed as Annexure-3 to the affidavit. The said order has also been challenged as it is a part of the final judgment and decree. Sri Triloki Nath has placed the order dated 18 10.2002 and has tried to show that the question regarding jurisdiction was argued, a number of citations were given and it was specifically stated that since the subject-matter of the dispute stood on the agricultural land, therefore, the bar of Section 331 of the U.P.Z.A. and L.R. Act is operative and the Judge Small Causes Court cannot proceed with the suit. In support of his submission, Sri Triloki Nath has cited a decision, Chandrika v. Vishwanath Pratap Singh and Anr. ., AIR1992 SC 1318 , JT1992 (3)SC 55 , 1992 (1)SCALE883 , (1992)3 SCC90 , [1992 ]2 SCR640 . In the said case the Apex Court laid down that in the event, an objection is raised regarding the nature of the land whether agricultural or non-agricultural it has to be determined in accordance with Sections 143 and 144 of the U.P.Z.A. and L.R. Act and if such a determination has not been made then the procedure laid down in Section 331A of the U.P.Z.A. and L.R. Act must be followed by the Court. This would be even in a case where building exists on the land and the land is claimed to be appurtenant to the building. Sections 331 and 131A are quoted below: 331. Cognizance of suits, etc. under this Act.--(1) Except as provided by or under this Act no Court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application: Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof the provisions of Schedule II insofar as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof. Explanation.--If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be identical to that which the revenue court would have granted. 331 A. Procedure when plea of land being used for agricultural purposes is raised in any suit: