Mohd. Muzammil Khan Vs. Mohd. Nadir Khan and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/483052
SubjectCivil
CourtAllahabad High Court
Decided OnMay-04-2009
JudgeShashi Kant Gupta, J.
Reported in2009(4)AWC3277
AppellantMohd. Muzammil Khan
RespondentMohd. Nadir Khan and ors.
DispositionPetition dismissed
Cases ReferredMrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal
Excerpt:
- u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - it is further submitted that the court below has failed to exercise its jurisdiction vested in it by rejecting the application of the defendant-respondent. it is well-settled that principles of res judicata can be involved not only in separate subsequent proceeding, they also get attracted in subsequent stage of the same proceedings once an order made in the course of a proceeding became final, it would be binding at the subsequent stage of that proceeding. it is well-settled in law that section 23 does not oust the jurisdiction of small cause court to decide question of title. girt lal jain 1983 (1) arc 244. it is well-settled in law that the question of title if arises incidently, can be decided for the purposes of deciding the main point in the case, which is properly within the jurisdiction of the small causes court act. jeejeebhoy in air 1971 sc 2355 (1). 12. in my opinion the aforesaid judgment is clearly distinguishable on facts and has no bearing in the facts of the present case. khemchand gorumal (1962) 3 scr 928 :air 1966 sc 1939. later on the apex court affirmed the view expressed by bombay high court in vinayak gopal linayes case air 1957 bom 94, as such the view taken by the trial court was not sustained subsequently by the high court of bombay as well as by the apex court.shashi kant gupta, j.1. this revision is directed against the order dated 6.2.2009, passed in s.c.c. suit no. 10 of 2001 by additional district judge, court no. 10, aligarh, whereby the application no. 117ga (under section 23 of the provincial small causes court act) for return of plaint to the plaintiff to present before the competent court has been dismissed.2. the suit inter alia was filed for arrears of rent and ejectment by the plaintiff-respondent against the revisionist. in the said suit an application was filed by the revisionist under section 23 of the small causes court act (in short 'act') for return of plaint alleging that the intricate question of title is involved in the matter. therefore, the court was not competent in terms of the aforesaid section to decide the suit. the said application by order dated 1.5.2004, was dismissed by the court below holding that the application filed under section 23 of the act is misconceived and has no force., subsequent thereto another application under section 23 was again filed by the applicant and the same was also dismissed by order dated 6.2.2009. hence, the present revision.3. the learned counsel for the applicant has submitted that intricate question of title is involved and the relief so claimed by the plaintiff entirely depends upon the proof or disproof of his title, as such the order passed by the court below is illegal. it is further submitted that the court below has failed to exercise its jurisdiction vested in it by rejecting the application of the defendant-respondent.4. heard the learned counsel for the applicant and perused the record.5. the suit inter alia was filed for arrears of rent and ejectment and the revisionist filed an application under section 23 of the act with the prayer to return the plaint to the plaintiffs to present before the competent court on the ground that intricate question of title is involved in the matter as such it cannot be decided by the small causes court. the said application was dismissed by the court below by detailed and reasoned order dated 1.5.2004. subsequent thereto another application was filed under section 23 of the act, based on the same facts and that too has been dismissed by the impugned order dated 6.2.2009. the court below has very rightly observed in the impugned order that once an application dated 6.1.2003 filed by the petitioner under section 23 was already dismissed on merit by the court below on 1.5.2004, thereafter, the second application under section 23 of the act, based on the same facts is misconceived and not maintainable.6. in this connection, the apex court in the case of y. b. patil and ors. v. y.l. patil air 1977 sc 392, has observed as follows:it is well-settled that principles of res judicata can be involved not only in separate subsequent proceeding, they also get attracted in subsequent stage of the same proceedings once an order made in the course of a proceeding became final, it would be binding at the subsequent stage of that proceeding.7. the court below has placed reliance on the decision of narayan das v. und additional district judge,. moradabad and ors. 1998 (2) arc 691, wherein this court has observed as follows:once he had sought to introduce the document and had suffered an order which has since been challenged here successfully in the present petition, it is not open to him to fill up the lacuna by filing subsequent application and take advantage thereof.' if such a situation is permitted, in that event, the principle of public policy, on which section 11 has been based in the code or the principle of res judicata is conceived of would altogether stand frustrated.8. in view of the aforesaid authority it can be very safely held that the second application filed under section 23 of the act was not maintainable and the court below has not committed any illegality in dismissing the application filed under section 23 of the act.9. this apart, hon'ble supreme court in shamim akhtar v. iqbal ahmad khan and ors. air 2001 sc 1 : 2001 (1) awc 54 (sc), has observed as follows:the question of title of the plaintiff to the suit house could be considered by the small cause court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent court. in such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the small cause court to determine finally the title to the property. the tenant respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the rent control act.10. this court in the case of vaseer ahmad v. additional district judge, saharanpur and ors. 2000 arc 327, has observed as follows:it is well-settled in law that section 23 does not oust the jurisdiction of small cause court to decide question of title. it merely gives option to the court to send a case to the court having jurisdiction, to determine the title. a reference in this regard made in the case of ram dayal sonar v. sukh mangal kalwar : air 1937 all 676 and mohammad fazi v. abdul qyaum : air 1978 all 470.... the use of the word may is indicative that the section confers on the court of small causes a discretion to decide or not to decide the suit for which question of the title is raised. a reference in this regard is made in the case of smt. padma negi v. girt lal jain 1983 (1) arc 244. it is well-settled in law that the question of title if arises incidently, can be decided for the purposes of deciding the main point in the case, which is properly within the jurisdiction of the small causes court act.11. the learned counsel for the applicant has placed reliance upon the judgment of the apex court in mathura prasad sarju jaiswal and ors. v. dossibai n.b. jeejeebhoy in : air 1971 sc 2355 (1).12. in my opinion the aforesaid judgment is clearly distinguishable on facts and has no bearing in the facts of the present case.13. in the case of mathura prasad sarju jaiswal (supra), issues decided by the trial court were affirmed by the high court of bombay in civil revision application no. 233 of 1955, but was subsequently overruled by the apex court in mrs. dossibai n. b. jeejeebhoy v. khemchand gorumal : (1962) 3 scr 928 : air 1966 sc 1939. later on the apex court affirmed the view expressed by bombay high court in vinayak gopal linayes case : air 1957 bom 94, as such the view taken by the trial court was not sustained subsequently by the high court of bombay as well as by the apex court. therefore, in the said backdrop, the following observations were made by the apex court:a question relating to the jurisdiction of the court cannot be deemed to have been finally determined by an erroneous decision of that court. if by an erroneous interpretation of the statute, the court holds, that it has no jurisdiction the question would not operate as res judicata.14. in the present case the earlier order dated 1.5.2004, passed by the court below dismissing the application under section 23 of the act was not challenged by the applicant and it attained finality. therefore, the decision in the case of mathura prasad sarju jaiswal (supra) is not at all applicable in the present matter.15. section 23 of the act does not make obligatory on the court of small causes to invariably return the plaint once a question of title is raised by the tenant in a suit for eviction. also a suit instituted by the landlord against the tenant on the basis of contract of tenancy, a question of title could also incidently be gone into.16. the argument of the applicant, that the plaint should have been returned back to the competent court does not have any merit. the argument has been spun around thin air. the revisionist has not laid down any valid foundation to his argument and it is difficult to uphold the contention of the revisionist. no fault can be found with the approach adopted by the court below. the court below has assigned cogent, convincing and satisfactory reasons to dismiss the application of the defendant-revisionist. argument of the revisionist has no substance and is wholly untenable and erroneous.17. i do not see any illegality or infirmity in the order passed by the court below.18. in view of the above discussion, the present revision is accordingly dismissed. however, it is expected that the court below will proceed with the matter expeditiously.
Judgment:

Shashi Kant Gupta, J.

1. This revision is directed against the order dated 6.2.2009, passed in S.C.C. Suit No. 10 of 2001 by Additional District Judge, Court No. 10, Aligarh, whereby the application No. 117Ga (under Section 23 of the Provincial Small Causes Court Act) for return of plaint to the plaintiff to present before the competent court has been dismissed.

2. The suit inter alia was filed for arrears of rent and ejectment by the plaintiff-respondent against the revisionist. In the said suit an application was filed by the revisionist under Section 23 of the Small Causes Court Act (in short 'Act') for return of plaint alleging that the intricate question of title is involved in the matter. Therefore, the Court was not competent in terms of the aforesaid Section to decide the suit. The said application by order dated 1.5.2004, was dismissed by the court below holding that the application filed under Section 23 of the Act is misconceived and has no force., Subsequent thereto another application under Section 23 was again filed by the applicant and the same was also dismissed by order dated 6.2.2009. Hence, the present revision.

3. The learned Counsel for the applicant has submitted that intricate question of title is involved and the relief so claimed by the plaintiff entirely depends upon the proof or disproof of his title, as such the order passed by the court below is illegal. It is further submitted that the court below has failed to exercise its jurisdiction vested in it by rejecting the application of the defendant-respondent.

4. Heard the learned Counsel for the applicant and perused the record.

5. The suit inter alia was filed for arrears of rent and ejectment and the revisionist filed an application under Section 23 of the Act with the prayer to return the plaint to the plaintiffs to present before the competent court on the ground that intricate question of title is involved in the matter as such it cannot be decided by the Small Causes Court. The said application was dismissed by the court below by detailed and reasoned order dated 1.5.2004. Subsequent thereto another application was filed under Section 23 of the Act, based on the same facts and that too has been dismissed by the impugned order dated 6.2.2009. The court below has very rightly observed in the impugned order that once an application dated 6.1.2003 filed by the petitioner under Section 23 was already dismissed on merit by the court below on 1.5.2004, thereafter, the second application under Section 23 of the Act, based on the same facts is misconceived and not maintainable.

6. In this connection, the Apex Court in the case of Y. B. Patil and Ors. v. Y.L. Patil AIR 1977 SC 392, has observed as follows:

It is well-settled that principles of res judicata can be involved not only in separate subsequent proceeding, they also get attracted in subsequent stage of the same proceedings once an order made in the course of a proceeding became final, it would be binding at the subsequent stage of that proceeding.

7. The court below has placed reliance on the decision of Narayan Das v. Und Additional District Judge,. Moradabad and Ors. 1998 (2) ARC 691, wherein this Court has observed as follows:

Once he had sought to introduce the document and had suffered an order which has since been challenged here successfully in the present petition, it is not open to him to fill up the lacuna by filing subsequent application and take advantage thereof.' If such a situation is permitted, in that event, the principle of public policy, on which Section 11 has been based in the code or the principle of res judicata is conceived of would altogether stand frustrated.

8. In view of the aforesaid authority it can be very safely held that the second application filed under Section 23 of the Act was not maintainable and the court below has not committed any illegality in dismissing the application filed under Section 23 of the Act.

9. This apart, Hon'ble Supreme Court in Shamim Akhtar v. Iqbal Ahmad Khan and Ors. AIR 2001 SC 1 : 2001 (1) AWC 54 (SC), has observed as follows:

The question of title of the plaintiff to the suit house could be considered by the Small Cause Court in the proceedings as an incidental question and final determination of the title could be left for decision of the competent court. In such circumstances, it could not be said that for the purpose of granting the relief claimed by the plaintiff it was absolutely necessary for the Small Cause Court to determine finally the title to the property. The tenant respondent by merely denying the relationship of landlord and tenant between himself and the plaintiff could not avoid the eviction proceeding under the Rent Control Act.

10. This Court in the case of Vaseer Ahmad v. Additional District Judge, Saharanpur and Ors. 2000 ARC 327, has observed as follows:

It is well-settled in law that Section 23 does not oust the jurisdiction of Small Cause Court to decide question of title. It merely gives option to the Court to send a case to the Court having jurisdiction, to determine the title. A reference in this regard made in the case of Ram Dayal Sonar v. Sukh Mangal Kalwar : AIR 1937 All 676 and Mohammad Fazi v. Abdul Qyaum : AIR 1978 All 470.... The use of the word may is indicative that the section confers on the Court of Small Causes a discretion to decide or not to decide the suit for which question of the title is raised. A reference in this regard is made in the case of Smt. Padma Negi v. Girt Lal Jain 1983 (1) ARC 244. It is well-settled in law that the question of title if arises incidently, can be decided for the purposes of deciding the main point in the case, which is properly within the jurisdiction of the Small Causes Court Act.

11. The learned Counsel for the applicant has placed reliance upon the judgment of the Apex Court in Mathura Prasad Sarju Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy in : AIR 1971 SC 2355 (1).

12. In my opinion the aforesaid judgment is clearly distinguishable on facts and has no bearing in the facts of the present case.

13. In the case of Mathura Prasad Sarju Jaiswal (supra), issues decided by the trial court were affirmed by the High Court of Bombay in Civil Revision Application No. 233 of 1955, but was subsequently overruled by the Apex Court in Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal : (1962) 3 SCR 928 : AIR 1966 SC 1939. Later on the Apex Court affirmed the view expressed by Bombay High Court in Vinayak Gopal Linayes case : AIR 1957 Bom 94, as such the view taken by the trial court was not sustained subsequently by the High Court of Bombay as well as by the Apex Court. Therefore, in the said backdrop, the following observations were made by the Apex Court:

A question relating to the jurisdiction of the Court cannot be deemed to have been finally determined by an erroneous decision of that Court. If by an erroneous interpretation of the statute, the Court holds, that it has no jurisdiction the question would not operate as res judicata.

14. In the present case the earlier order dated 1.5.2004, passed by the court below dismissing the application under Section 23 of the Act was not challenged by the applicant and it attained finality. Therefore, the decision in the case of Mathura Prasad Sarju Jaiswal (supra) is not at all applicable in the present matter.

15. Section 23 of the Act does not make obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant in a suit for eviction. Also a suit instituted by the landlord against the tenant on the basis of contract of tenancy, a question of title could also incidently be gone into.

16. The argument of the applicant, that the plaint should have been returned back to the competent court does not have any merit. The argument has been spun around thin air. The revisionist has not laid down any valid foundation to his argument and it is difficult to uphold the contention of the revisionist. No fault can be found with the approach adopted by the court below. The court below has assigned cogent, convincing and satisfactory reasons to dismiss the application of the defendant-revisionist. Argument of the revisionist has no substance and is wholly untenable and erroneous.

17. I do not see any illegality or infirmity in the order passed by the court below.

18. In view of the above discussion, the present revision is accordingly dismissed. However, it is expected that the court below will proceed with the matter expeditiously.