Full Judgment
J.C. Gupta, J.
1. This is landlords' petition challenging the validity of the order dated 29.5.1991 passed by respondent No. 1 (Annexure-7 to the writ petition). By the said order, revision filed by respondent Nos. 3 and 4 has been allowed and the lower revisional court has ordered that the petitioners' plaint be returned for presentation before the proper Court under Section 23 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the Act).
2. The facts encompassing the controversy are that the petitioner filed suit for ejectment and recovery of arrears of rent and damages far use and occupation of the two disputed shops with the allegation that he has become owner-landlord of the disputed shops after having purchased the same from previous owners Smt. Athar Zamani Begum and Smt. Ashfaq Zamani Begum through a registered sale deed dated 15.10.79. Before the said transfer, defendant No. 1 used to pay rent to Smt. Athar Zamani Begum exclusively and she was landlady of the respondents tenant. After the sale deed aforesaid, the plaintiff has stepped into her shoes and is entitled to realise rent from the said defendant. The plaintiff served him with a notice demanding rent but the same was not paid. Hence suit was filed after determination of tenancy in accordance with law.
3. Both the defendants filed a joint written statement, inter alia pleading that Smt. Athar Zamani Begum and Smt. Ashfaq Zamani Begum were not the sole owners of the shops in question as there were other co-sharers. However, names of the alleged co-sharers were not disclosed by the defendants in their written statement. It was further pleaded that as there are other co-sharers of the disputed shops. Smt. Athar Zamani Begum and Smt. Ashfaq Zamani Begum had no legal right to transfer the shops in question and the sale deed alleged to have been executed in favour of the petitioner was not valid. It was further pleaded that the shops in question were the property of Riyasat Jahangirabad which were occupied on rent by the defendants and Smt. Athar Zamani Begum used to realise rent on behalf of all the co-sharers of Riyasat Jahangirabad and she was not the sole landlady of the disputed shops. In para 12 of the written statement, the defendants, however, pleaded that they have never denied the title of Smt. Athar Zamani Begum and Smt. Ashfaq Zamani Begum or the title of the plaintiff-petitioner, rather they have simply stated the fact that there are other co-sharers of the said property.
4. The case proceeded in the Court of Judge Small Causes and after when the plaintiff evidence had been recorded, an application 85B was moved from the defendants side stating therein that since question of title as regards property in question was involved in the suit, the plaint was liable to be returned under Section 23 of the Act for presentation before the proper Court. The petitioner filed objection to that application. The trial court took the view that no intricate question of law was involved and as the evidence of defendant was yet to be recorded, the question whether there existed any relationship oflandlord and tenant between the parties could be answered conveniently after the evidence of the parties was over. With these findings, the trial court rejected the defendants' application 85B by the order dated 4.2.89. Aggrieved by this order, respondent Nos. 3 and 4 preferred S.C.C. Revision No. 44/89 which was allowed by respondent No. 1 by the impugned order and the plaint was ordered to be returned to the plaintiff-petitioner for presentation before the proper court.
5. Despite time having been allowed, no counter-affidavit has been filed by respondent Nos. 3 and 4 though they are represented by Sri P. K. Srivastava.
6. When this writ petition came up for hearing, none appeared on behalf of respondent Nos. 3 and 4 and only learned counsel for the petitioner has been heard.
7. Learned counsel for the petitioner Sri Sunil Kumar submitted that the view taken by the respondent No. 1 that since question of title of the plaintiff petitioner was Involved in the present suit the Court of Small Causes had no jurisdiction to try the same, was erroneous and he has erred in ordering return of plaint under Section 23 of the Small Cause Courts Act. It was submitted by the learned counsel that the main controversy involved in the present suit was whether the predecessor-in-interest of the plaintiff Smt. Athar Zamani Begum was the landlady of the defendants and after execution of the sale deed by her in favour of the plain tiff-petit loner, the relationship of landlord and tenant came Into existence between the parties to the suit. Section 23 of the Small Cause Courts Act reads as under :
'Section 23(1) : Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to Immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.
(2) When a Court returns a plaint under sub-section (1). It shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure (14 of 1882), and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Indian Limitation Act, 1877 (15 of 1877) be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.'
8. On a perusal of the above provisions. It would appear that in order to attract them, it is necessary that when the Court in which suit has been filed comes to the conclusion that the relief claimed by the plaintiff in the suit depends upon the proof or disproof of title to the immovable property involved in the suit, which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented before a proper court having jurisdiction to determine the title. The purpose and intention of this provision is to enable the Court of Small Causes to save its time by returning the plaint which involves an elaborate inquiry of intricate question of title and is, therefore, likely to take time.
9. In the case of Abdul Kalam v. Abdul Majid and another, 1992 (1) ARC 453, it was held that where the question of grant of relief of ejectment in favour of the plaintiff against the defendant depended on the existence of proof of relationship of landlord and tenant and not on the proof or disproof of the title to the property in dispute the plaint should not be ordered to be returned for presentation before the proper Court. If the plaintiff fails to prove that relationship, the suit would fall. Mere denial of title of the plaintiff would not oust the jurisdiction of the Judge Small Causes.
10. In another case of Mohd. Fasi v. Abdul Qyayum : AIR1978 All470 in para 5, Hon. R. R. Rastogi. J. expressed the view in the following words :
'......It would appear that in order to attract the applicationof this sub-section, it is necessary that the Court in which a suit has been filed must either be a Court of Small Causes or a Court invested with Small Causes powers and the suit must be of the nature of Small Causes. The purpose and intention of this provision is to enable the Court of Small Causes to save its time by returning the plaint which involves inquiry into the questions of title and is, therefore, likely to take time. It is only an enabling section and enables the Court at any stage of the proceeding to return the plaint in order that it may be presented to a Court which could determine the title. The section does not say that such suits arc not cognizable by the Small Causes Court. It also does not say that Small Causes Court has not got jurisdiction to determine the question of title to immovable property. It gives that Court an option to send the case to the Court having jurisdiction to determine the title probably on the ground of convenience. Another aspect is that the enquiry is limited under this provision to the right of the plaintiff and to the relief claimed by him and it is the right of the plaintiff and the relief claimed by him which has got to be considered. There is no warrant for an interference that the plaintiff and the defendant should be rival claimants to the immovable property.
11. Reliance has also been placed on the case of Mohd. Iliyas v. Hari Ram : AIR1926 All344 , wherein it was held that where one party is precluded from disputing the title of the other party by virtue of estoppel, it will be wrong to apply Section 23.
12. In a recent decision in the case of Gpal Chand Singh Roy v. District Judge, Varanasi and others, 1996 (2) ARC 68, Hon'ble D. K. Seth. J, has held that in a Small Cause suit, the Court is concerned with the question whether there is any real dispute as to title or not. Under Section 23, the Court may at any stage of the proceeding has the power to return the plaint but such an order has to be passed only when it finds that the right of the plaintiff and the relief claimed by him is dependent upon proof or disproof of title to an immovable property.
13. In the case of Shyam Behari v. Shakuntala Devi and others. 1987 (1) ARC 255, the contention that once there was a dispute as regards title, the plaint was liable to be returned was repelled.
14. In the case of Noola v. L. Chimman Lal : AIR1935 All148 , the view taken was that Section 23 says that a Small Cause Court is competent to decide a question of title but then it should finally determine the same and not . In a cursory manner. It is not always convenient for a Small Cause Court Judge to decide an intricate question of title and the object of Section 23 is to meet cases in which the Judge is satisfied that the question of title is so intricate that it should not be decided summarily and that it should return the plaint for presentation to the proper Court. It was also held that under this section the enquiry is limited to the right of the plaintiff and to the relief claimed by him and it is the right of the plaintiff and the relief claimed by him which has got to be considered.
15. Under the scheme of the Act, a right has been conferred upon a suit or to get his matter determined in a summary manner quickly. No appeal is also provided against the decree passed by such Courts. The plaintiffs, therefore, cannot be divested of that right merely on the ground that since question of title has been raised by the defendant, the Court is bound to return the plaint for presentation before the proper Court. If this could be the interpretation of Section 23, a clever defendant will always succeed in every case in compelling the plaintiff to go to a rigorous trial before a regular court for establishing his right and for getting the relief which he otherwise could obtain in a lesser time without going into a cumbersome process. This was not the intention behind enacting Section 23 of the Act. Inquiry under Section 23 is limited to the right of the plaintiff and to the relief claimed by him. Therefore, before ordering return of plaint, it is necessary for the Small CauseCourt to record a definite finding that the right of the plaintiff and the relief claimed by him is wholly dependent upon the proof or disproof of the title to the immovable property and the matter cannot finally be determined conveniently in a summary manner. The Court of Small Causes has also the power to go into the question of title as well for adjudicating upon the plaintiffs right to get the relief claimed where such question is incidentally involved and the inquiry is not an elaborate one.
16. Therefore, to say that the Court of Small Causes has no jurisdiction to go into the question of title is not correct. The taw whether the Court of Small Causes can go into the question of title can be said to be beyond controversy. In brief, it can be said that the Judge, Small Cause Court has the power to go into such a question incidentally for determining the real issue before It. However, where the Court feels that an intricate question of title is involved which cannot be conveniently decided in a summary manner, it may order return of plaint under Section 23 of the Act for presentation before the proper court.
17. In the present case, the plaintiff has claimed in himself rights of the lessor which according to him stood transferred to him by virtue of the sale deed executed by the previous landlady. It is further the case of the plaintiff that prior to this transfer, rent by the defendant was being paid to the predecessor-in-interest of the plaintiff. It is also not disputed by the defendants that rent was being paid to Smt. Athar Zamani Begum though according to them the landlady was realising rent on behalf of other co-sharers. In the circumstances of the present case the grant of relief of ejectment and recovery of arrears of rent depends upon the proof or disproof of the rights claimed by the plaintiff in the suit. The correctness of the defence case and its effect in law on the plaintiffs right are yet to be determined by the trial court on the basis of evidence led by the parties. Merely on the basis of the defence plea that there are other co-sharers of the property in suit and, therefore, the sale deed executed in favour of the plaintiff was not valid, the jurisdiction of Small Cause Court in the present case was not ousted. If the plaintiff ultimately does not succeed in establishing the relationship of landlord and tenant between him and the defendants, his suit would fail. The trial court examined this question and came to the conclusion that the plaint was not liable to be returned under Section 23 of the Act and rejected the petitioner's application 85B. The lower revisional court on an erroneous view of law has set aside the said order which has caused great injustice to the petitioner, The said order of the revisional court, therefore, cannot be upheld.
18. For the above reasons, this writ succeeds and is allowed. The impugned order of the revisional court dated 29.5.1991 (Annexure-7 to the writ petition) is set aside and that of the trial court dated 4.2.1989 (Annexure-6 to the writ petition) is restored. The trial court is now directed to proceed with the suit expeditiously according to law. In the circumstances, the parties are directed to bear their own cost.