Krishna Bhagwan vs District Judge,Bareilly and Others

Yatindra Singh, J.—This is the tenant''s writ petition. It is against the ex pane order dated 2051992, passed by respondent No. 2, the order dated 1221999 rejecting the application of the tenant to set aside the ex pane order and the order dated 63 1999 passed by respondent No. 1 dismissing the revision of the petitioner against the order dated 1221999. Facts

Respondents No. 3 to 7 are the landlords. They letout 10800 sq. feet of open piece of land to the petitioner by the registered lease deed dated 651968, for storage of petroleum products, motor accessories, etc. The respondents 3 to.7 (the landlord for short) have filed a suit in the Court of Small Causes, respondent No. 2 for ejectment and arrears of rent. This suit was decreed ex pane on 20 51992. The petitioner has filed an application on 1431996 for setting aside me ex. pane decree. This application was dismissed on 1221999. The revision against the same was dismissed on 691999. Hence, the present writ petition.

Points for determination

I have heard Counsel for the parties. The following points arise for determination:

What is the nature of the property leased?

Does the Court of Small Causes have jurisdiction in respect of open piece of land? :

Can such objection to jurisdiction be taken at this stage?

Was there sufficient cause for nonappearance? Should the exparte decree be set aside?

Nature of property in dispute

The land let out to the petitioner was an open piece of land. It was to be used as service station/filling station and for the sate of petroleum products, motor accessories, etc. The tenant was at liberty to make construction in the open piece of land for these purposes. These constructions were to remain the property of lessee and not of the lessor. The tenant was to remove his construction on the expiration of the lease'' or the determination of the same. He was to hand over the vacant piece of land. This is clear from condition Nos. 1, 3and 4 of lease deed.

The suit itself is for the recovery of referred to as the Act). All suits of civil the open land and not of buildings. The nature upto a limit specified in the Act are relief in the suit says so.1 cognizable by the Court of Small Causes except those, which are mentioned in the Hnd Schedule to the Act. This ''

The respondent No. 2 decreed the suit on 20051992. He also directed the petitioner to handover the open piece of land after removing his constructions.2 The lease was of open piece of land so was the suit and the decree.

JurisdictionSmall Causes Court

The Small Cause Courts have been established under the Provincial Small Causes Courts Act, 1887 (hereinafter referred to as the Act). All suits of civil nature upto a limit specified in the Act are cognizable by the court of Small Causes except those, which are mentioned in the IInd Schedule to the Act. This is so provided in the Section 15 of the Act. The State of Uttar Pradesh has amended Section 15 but is not material for the purposes of this case.

Second Schedule deals with the suit accepted from cognizance of the Court of Small Causes. The relevant entry is Item No. 4. The State Government has amended it. According to it, a suit by lessor for eviction of the lessee from a building after determination of lease will lie in the Small Causes Courts. But the suit has to be in respect of a building. The words ''building'' is also defined in the Explanation. It means residential or nonresidential structure and includes land appurtenant to such building. It does not include open piece of land, such a suit is not covered by the entry 4 to the Schedule 2. Here the land leased out was open piece of land. The suit itself is for the eviction of open piece of land. It was not cognizance by the Court of Small Causes. The suit will lie in the regular Civil Court.

Can this objection be taken at this stage?

The Bengal, Agra and Assam Civil Court Act, 1887 (the Civil Court Act for short) was enacted in order to consolidate and amend the law relating to Civil Courts. It extends to the State of Uttar Pradesh also. The regular Civil Courts are constituted under this Act: their ordinary and special jurisdiction is specified therein. The regular Civil Court is defined under this Act and have their powers defined therein. The Code of Civil Procedure, 1908 (CPC for short) is applicable. The Courts of Small Causes are not covered by this Act. They are governed by the Provincial Small Cause Courts Act, 1887. Section 40 of the Civil Court Act applies only Section 15,32,37 and 39 to the Courts of Small Causes. The rest of the Civil Court Act does not apply to the Small Cause Court. The C.P.C. which applies to the regular suit does not completely apply to the Courts of Small Causes Some provisions are not applicable. This is clear from Order L of the C.P.C. First appeal does not lie against the decree of Court of Small Cause, only a revision under Section 25 of the Act lies.

The Court of Small Causes as the name suggests was meant for the small causes. The legislature itself has provided what will be small causes and what will not be small causes. This is what Section 15 of the Act is about. The second Schedule defines certain kind of cases. They according to the Legislature, are not small causes and have been excepted from the jurisdiction of the Qrart of Small Causes. The rest of the cases are in the nature of small causes only if the valuation is less than the limit mentioned in Section 15 of the Act. The suit by lessor for eviction of lessee for open piece of land, according to Legislature, is not a case of small cause. The Court of Small Causes cannot try it. In case it is so tried, then there would be inherent lack of jurisdiction.

A decree passed by the Court without jurisdiction over the subjectmatter or on any ground which goes to the root of jurisdiction or inherent jurisdiction is a nullity; nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon a foundation for a right even at the stage of execution or in collateral proceedings. It is ultra vires the powers of the Court. But if the Court has jurisdiction but there is defect in its exercise, not going to its root; like territorial, it can be corrected; waived1

Here the suit was not cognizable by Small Causes Court. There is inherent lack of jurisdiction. The judgment and the decree dated 2051992 is a nullity and it can be challenged at any time. Here though petitioner has not challenged it by filing a revision but has challenged it in this writ petition. He has prayed for quashing of this order. He has also taken a ground of jurisdiction in the revision against the order dated 1221999. This is raised in the ground No. 9. But the revisional Court has negatived it by one line in paraIS that the question of jurisdiction has been decided.2 The petition cannot be rejected on this ground.

12.1 have already held the decision of the Courts below is liable to be set aside on the ground that there was inherent lack of jurisdiction. It is not necessary to decide the last point for determination.

Conclusion

The writ petition is allowed with costs. The impugned orders dated 2051992,1221999 and 631999 are hereby quashed. The parties will appear before the Judge, Small Cause Court at Bareilly oa21 August, 1999.3The Court may return the plaint to the plaintiffslandlords after following the procedure as detailed in Order VII, Rules 10 and 10A, C.P.C. The Judge Small Causes Court may also fix up a date for appearance before the Court to which the plaint is proposed to be presented so that there may not be further delay. Petition allowed.