Mahesh Chandra Sharma and Another vs IInd A.D.J. and Others

S.U. Khan, J.—Original respondent No. 3 Sardar Kartar Singh, since deceased and survived by legal representatives filed S.C.C. Suit No. 67 of 1988 against Chaturbhuj Das since deceased and survived by petitioners before J.S.C.C., Mathura. It was pleaded in the plaint that plaintiff was the owner landlord of the house In dispute and defendant was tenant thereof at the rate of Rs. 20 per month. It was further alleged that rent had not been paid for a very long time. Relief of eviction on the ground of default and recovery of rent was sought in the plaint. Original defendant filed written statement denying the plaint allegations and stated that Smt. Attar Kaur mother of the plaintiff had donated the house in dispute to him and there was no question of payment of rent. In para 2 of the plaint, it had been stated that rent note was also written by the defendant in favour of the plaintiff.

As defendant had denied the relationship of landlord and tenant and had claimed his own ownership hence an issue being issue No. 5 was framed to the effect that as to whether suit was liable to be transferred to regular civil court u/s 23 of Provincial Small Causes Courts Act (in total 12 Issues were framed on 9.7.1992). Issue No. 2 was to the effect that as to whether J.S.C.C. had got jurisdiction to decide the suit. Issue No. 2 was decided as preliminary issue by the trial court on 4.2.1993. The trial court held that suit was maintainable before it. Against the said order, Civil Revision No. 80 of 1993 was filed. IInd Additional District Judge, Mathura, through Judgment and order dated 25.1.2002, dismissed the revision, hence this writ petition.

Before the revisional court scope of Section 23, P.S.C.C. Act was also argued. The revisional court held that question of title was not involved and for deciding the question of title, only allegations of the plaint are material.

In order to decide as to whether Court has got jurisdiction only allegations of the plaint are to be seen. However, in order to decide as to whether plaint is liable to be returned for presentation before competent civil court u/s 23 Provincial Small Causes Courts Act, allegations in the written statement are also to be seen. It is not the purpose of Section 23, P.S.C.C. Act that whenever defendant states that question of title is involved plaint shall be returned for filing before regular civil court. It is only when in real sense a complicated question of title is involved, plaint shall be so returned vide Budhu Mal Vs. Mahabir Prasad and Others, . In the instant case, defendant pleaded that the house was orally gifted/donated. Oral gift of immovable property is permissible only under Muslim Law. No such provision is there under Hindu Law.

In any case in order to succeed, plaintiff will have to show that defendant is his tenant. If he fails to prove that defendant is tenant suit filed by him before J.S.C.C. for eviction of the defendant treating him to be the tenant is liable to fail. If plaintiff respondent fails to prove that original defendant was tenant, it will not be necessary for the Court to decide that in what other capacity original defendant was continuing in possession.

Learned Counsel for the petitioner has cited following authorities on the interpretation of Section 23, Provincial Small Causes Courts Act.

(1) 2002 (2) ARC 393 Para 7.

(2) Shiv Nath Vs. Addl. District Judge, Maharajganj and others,

(3) Pratap Singh Vs. IXth Additional District Judge, Fatehpur and others,

(4) Noola Vs. L. Chimman Lal,

(5) Parvathi Ammal Vs. K.G. Venketeswara Aiyar and Others,

In those authorities it was held that complicated question of title was involved. In the Instant case, I have found that no complicated question of title is involved. Moreover, the aforesaid authority of the Supreme Court of Budhu Mai has explained the scope of Section 23, P.S.C.C. Act hence, there is no need to discuss the above authorities on the said point in detail.

It is unfortunate that the suit is pending for 18 years still trial has not begun in real sense.

Writ petition is therefore, dismissed.

Trial court is directed to decide the suit as expeditiously as possible but in no case later than by 30.9.2006. Both the parties are directed to appear before the trial court on 18.5.2006 along with certified copy of this order.