MANGAT RAM JAIN Vs. GOVERDHAN DASS TALWAR

JUDGEMENT

(1.) This is a defendants' revision application under Sec. 115 of the Civil Procedure Code against the judgment and order dated 25.10.1975 passed by the Vth Additional District Judge, Meerut.

(2.) Briefly stated the facts are that the plaintiff opposite party is the owner of the house in suit and had let it out to Atma Ram Jain, since deceased, on a monthly rent of Rs. 8.75. The landlord moved an application under Sec. 3 of the U.P. Act III of 1947 for permission to file a suit for ejectment against Atma Ram Jain. The permission was granted on 29.9.1959. Atma Ram Jain filed a revision under Sec. 3(3) of the said Act which was rejected by the Commissioner on 22.12.1959. The representation filed by him under Sec. 7F of the said Act was also rejected on 23.5.1962. Atma Ram Jain died on 26.5.1962. The revisionists, who are the heirs of Atma Ram Jain, remained in possession of the disputed house. On 15.12.1967 a notice of demand and ejectment was given to them by the landlord requiring them to pay the arrears of rent and to vacate the house. Rent was in arrears from 10. but the suit was filed for the recovery of rent for three years only. The suit was filed on 24.9.1968 in the court of the Munsif Ghaziabad. It was transferred to the court of the Additional Munsif and on 19.11.1970 to the Court of IV Additional Munsif, Ghaziabad. In this court a preliminary issue was taken up for disposal on 10.7.1971 and statement of one witness was recorded. Finding on this issue was given on 27.7.1971. The U.P. Civil Laws Amendment Act 1972 (U. P. Act 37 of 1972) came into force on 20.9.1972. According to Sec. 9 of this Act suits for ejectment of tenants after determination of lease and for the recovery of arrears of rent etc. pending in regular courts stood transferred to the Small Cause Courts, provided recording of evidence had not started. On 16.12.1972 the District Judge passed an order transferring this case to the court of the Judge Small Causes. It was received in that court on 1.11.1973. After recording further evidence the suit was dismissed on 15.2.1973. The plaintiff filed a revision under Sec. 25 of the Small Cause Courts Act which was allowed on 25.10.75. Hence this revision application by the defendants.

(3.) The learned counsel for the revisionists has vehemently contended that recording of evidence in this case had started before 20.9.1972, when the U. P. Act 37 of 1972 came into force and the suit could not be transferred to the Small Cause Court. The learned counsel for the opposite party has repelled this contention on the ground that this plea was not raised before the lower courts and cannot be taken for the first time at this stage and more so when he had submitted to the jurisdiction of the Small Cause Court. There is force in the contention of the learned counsel for the revisionists as jurisdiction cannot be conferred by consent. Recording of evidence had started before 20-9-1972 and the suit could not be transferred to the Small Cause Court. It had no jurisdiction to try it and as this question goes at the root of the whole matter this court is competent to entertain it.