(Hakim) Mohammad Ilyas vs Hari Ram and Others

Daniels, J.—This is an application in revision against an order of Small Cause Court returning a plaint u/s 23 of the Provincial Small Cause Courts Act to be presented on the regular side on the ground that the case depends upon the plaintiff''s title to immovable property. The applicant urges that the defendant was estopped from disputing the plaintiff''s title u/s 116 of the Evidence Act and, therefore, that no question of title had to be decided in the suit and Section 23 did not apply. It is an admitted fact that the defendant executed in favour of the plaintiff a document specifically stating that he has taken the house from him on a rent of Rs. 20 a month from a certain date. This, on the face of it, creates a tenancy and gives rise to the estoppel The defendant tries to get out of this in all sorts of ways as by alleging that he had previously taken the house from the plaintiff''s brother, who is at logger-heads with the plaintiff and that he merely executed this memorandum as evidence of what the rent was. This explanation is contradicted by the document itself which is a clear admission of tenancy from the plaintiff. In my opinion the defendant was precluded from disputing the plaintiff''s title in this suit and the Court below was wrong in applying Section 23.

It is urged against the revision that this Court should not interfere because the plaintiff has another remedy by filing his suit on the regular side. The plaintiff will however be gravely prejudiced by being deprived of the summary redress which Small Cause Court procedure gives him and being required to enter into an elaborate controversy as to title. I therefore set aside the order of the Court below and direct the learned Judge of the Small Cause Court to restore the case to his file and dispose of it on the merits. This applicant will have his costs of this application. Other costs will abide the result.