ABDUL HAMID Vs. IIIRD ADDL DISTRICT JUDGE MAINPURI

JUDGEMENT

(1.) The question, which arises for consideration in this writ petition, is whether the jurisdiction of civil court Is barred to try a suit which is of small cause court nature and the decree. If passed by civil court in such a suit, will be null and void?

(2.) The facts giving rise to said question are that respondent Beni Ram Agarwal (hereinafter referred as 'Plaintiff') filed Original Suit No 420 of 1985 for possession before Munsif, Shikohabad against petitioner-defendant Abdul Hamid (hereinafter referred as 'Defendant') after determining the tenancy in respect of premises in dispute. After considering the case of the parties. Munsif, Shikohabad on 11.11.1987 decreed the suit. Aggrieved by decree of trial court, the defendant filed an appeal. During pendency of appeal, an application was moved on 2.5.1989 by defendant to amend his written statement. The plea, which was sought to be introduced by proposed amendment of written statement, is that as suit was cognisable by small cause court, the jurisdiction of civil court was barred. The plaintiff objected to proposed amendment and appellate court by impugned order dated 4.11.1989 rejected the amendment application. The amendment application has been rejected mainly on three grounds ; (1) The jurisdiction of civil court is not ousted under Section 15 (1) of Provincial Small Causes Courts Act. (2) The plea of jurisdiction was not raised before the trial court and, therefore, it cannot be raised before this Court for the first time. (3) It is a bogus plea, which is not relevant to adjudicate upon the controversy but has been raised to delay the disposal of the case. Aggrieved by order passed by appellate court, the defendant has filed this petition.

(3.) The learned counsel for petitioner has reiterated his stand which was taken up before the appellate court and argued that as there was inherent lack of jurisdiction with trial court, the decree passed by trial court is a nullity.