Mudunuri Suryanarayanaraju vs Korukonda Apparao

This revision is directed against the order passed by the Subordinate Judge, Bhimavaram in a Small Cause Case No.81/1988, dated 17-12-1997, whereby the plaint has been returned under Order 7 Rule 10A(2) of the CPC for presentation before the proper Court.

The petitioner filed SCC 81/1988 alleging that he is the owner and landlord of the suit shop by virtue of the sale deed dated 10-2-1984, Ex.A1, which had been executed by Jupudi Ammaji @ Hymasundari who had obtained this properly from her mother-in-law namely Jupudi Sesharatnam through settlement deed dated 31-7-1957, Ex.A2. The respondent who was his tenant in the suit shop did not pay the agreed rent at the rate of Rs.35/- per month for 36 months amounting to Rs.1,260/- and sought for a money decree for the said amount. The respondent-defendant through written statement alleged that he is the tenant of Jupudi Kesavarao in respect of the suit shop for the last 30-40 years and had been paying rent to him. The vendor of the petitioner-plaintiff namely Jupudi Ammaji @ Hymasundari had filed RCC 7/1980 against him for ejectment but it was dismissed. The real owner and landlord of the suit shop is Jupudi Kesavarao or his wife in whose favour a settlement deed in respect of the suit shop was executed, therefore, the plaintiff is not the owner and landlord nor he has attorned tenancy in his favour.

The trial Court dismissed the suit holding that the petitioner has failed to establish that the respondent had attorned tenancy in his favour.

The petitioner preferred CRP No.271/1991 in the High Court. The revision was allowed and the judgment and decree of dismissal of the suit dated 4-10-1990 was set aside and the matter was remanded to the trial Court for fresh disposal according to law. It was also observed that the petitioner shall be at liberty to file the document dated 16-5-1941 before the trial Court. It was observed that the trial Court has failed to consider the effect of the settlement deed and in case the settlement deed and the sale deed are proved, the petitioner shall automatically become the landlord of the defendant on the same terms and conditions.

On remand, the petitioner had filed the settlement deed dated 16-5-1941 through which it was alleged that the original owner Jupudi Kesavarao had transferred the suit shop in favour of his wife Jupudi Sesharatnam. He was further examined as P.W.1. The respondent-defendant was also further examined.

The trial Court holding that, the claim of the plaintiff is based on his title over the suit shop and, therefore, the jurisdiction of the Small Causes Court is ousted u/s 7(1) of the Small Causes Act, because the question of title is to be decided, returned the plaint to be presented before the proper Court.

Feeling aggrieved by the impugned order, the plaintiff has preferred this revision.

At the outset, it is to be remarked that the suit shop is situated within the jurisdiction of the Civil Court situated in Bhimavaram of West Godavari District which is outside Telangana area of the State of Andhra Pradesh. Therefore, the provisions of the Andhra Pradesh (Telangana Area) Small Causes Court Act, 1330F are not applicable to the case on hand because this Act extends to the whole of the Telangana Area of the State of Andhra Pradesh only and for the remaining parts of the State, the provisions of the Provincial Small Causes Court Act, 1887 are applicable.

The case on hand is governed by the provisions of the Provincial Small Causes Court Act 1887 (for short, ''PSCC Act'').

Section 15 of the PSCC Act reads as under :

"15. Cognizance of suits by Courts of Small Causes :--(1) A Court of Small Causes shall not take cognizance of the suits specified in the second Schedule as suits excepted from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes.

(3) Subject as aforesaid, the State Government, may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order.''''

Section 15(2) of the PSCC Act provides that subject to the exceptions specified in the Second Schedule and to the provisions of any enactment for the time being in force, suits of civil nature of which the value does not exceed rupees five hundred shall be cognizable by a Court of Small Causes. The State of Andhra Pradesh has enacted the A.P. Civil Court Act, 1972 which has come into force with effect from 1-11-1972. Section 24(1) of this Act reads as under :

"24. Investiture of District Judge, subordinate Judge or Junior Civil Judge with small Causes jurisdiction :-

(1) The High Court may, by notification, invest, within such local limits as it shall, from time to time, fix, -

(i) any District Judge, or Subordinate Judge, with the jurisdiction of a Judge of a Court of Small Causes for the trial of suits cognizable by such Courts upto the amount often thousand rupees.

(ii) any Junior Civil Judge, with like jurisdiction upto the amount of four thousand rupees."

By notification in Roc.No.509/SO/ 83, dated 6-6-1983, the High Court had invested District Munsifs in the State with the jurisdiction of a Judge of Court of Small Causes for the trial of suits cognizable by such Courts upto Rs.1,000/- while the Subordinate Judges were invested with the powers to try suits of small causes where the value is above Rs.1,000/- and upto Rs.2,500/-. This notification has been superseded and by Roc.No.1765/SO/84, dated 12-4-1990, the High Court has invested all the Subordinate Judges in the State with the jurisdiction within the local limits of their respective headquarters of a Judge of a Court of Small Causes for the trial of suits cognizable by such Courts upto the amount of rupees ten thousand while the District Munsifs in the State have been invested with the jurisdiction of a Judge of a Court of Small Causes for the trial of suits cognizable by such Courts upto the amount of rupees four thousand with effect from 5-3-1990. Under these circumstances, the trial Court had pecuniary jurisdiction to try the suit in question even prior to the enhancement of its pecuniary jurisdiction.

Article (8) of the Second Schedule of the PSCC Act reads as under :

''''a suit for the recovery of rent, other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the State Government with authority to exercise jurisdiction with respect thereto."

The State of Andhra Pradesh has conferred powers on the Small Causes Courts to try suit for recovery of rent other than house rent under Article (8) of the Second Schedule of the PSCC Act. Thus, a Court of Small Causes is competent to try suits for recovery of house rent. Even if a shop is housed in a house, a suit for recovery of rent for the shop can be tried by a Small Causes Court for the words "house rent" as used in Article 8 of the Second Schedule ibid cover and include shop rent.

Section 23(1) of the PSCC Act reads as under:

"23. Return of plaints in suits involving questions of title .--(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 of 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 proceeding return the plaint to be presented to a Court having jurisdiction to determine the title."

It has been held in the case of Prayaga Doss Jeevaru v. Pachella Doraiswami Iyengar and another., AIR 1926 Mad. 656(2), that, a Small Cause Court is no doubt entitled to decide a question of title if it arises incidentally. But where the plaint and the written statement show that the issue to be found out and decided is one of title, the suit cannot be considered to be one of small cause nature.

In the case of Budhu Mal v. Mahabir Prasad and others AIR 1988 SC 772, it is held that :

"Section 23 does not make it 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 in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties.

The question that falls for determination is whether the defence of disclaimer as set out by the respondent-defendant is such a complicated dispute about the title that the issue should be tried by a regular Court or whether the title is to be incidentally investigated by the Court of Small Causes for it is a suit for recovery of rent only?

The respondent-defendant claims that he was inducted as a tenant about 30-40 years back by Jupudi Kesavarao to whom he has been paying rent. Jupudi Kesavurao is the real owner and landlord of the suit shop or his wife is the real owner in whose favour there was a settlement deed in respect of the suit property and as such the petitioner-plaintiff is not the landlord. The petitioner-plaintiff has filed the settlement deed dated 16-5-1941 claiming that Jupudi Kesavarao had transferred the suit shop through this settlement deed in favour of his wife Jupudi Sesharatnam. He has also adduced evidence in the trial Court. The evidence of the defendant in this regard is also on record. The alternative case of the defendant is that Jupudi Kesavarao or his wife Jupudi Sesharatnam is the owner and landlord/landlady of the suit shop by virtue of the settlement deed. Thus, prima facie it appears that the respondent-defendant does not deny the title of Jupudi Sesharatnam. The case of the petitioner-plaintiff is that the said Jupudi Sesharatnam had transferred the suit shop through a registered settlement deed, Ex.A2, 31-7-1957 in favour of her daughter-in-law Jupudi Ammaji @ Hymasundari who in turn has sold the suit shop through the registered sale deed, Ex.A1, dated 10-2-1984 in favour of the petitioner-plaintiff. It is pertinent to note that it is not the case of the respondent-defendant that either he himself is the owner of the suit shop or he is a tenant of a third party who is not at all related to Jupudi Kesavarao who had inducted him as tenant in the suit shop. It is also noteworthy that no specific ground has been taken by the respondent-defendant in an attempt to invalidate the documents on which the petitioner-plaintiff relies for claiming derivative title. The dispute does not appear to be one of a complicated nature about the title of the property. The only object of Section 23 of the PSCC Act is to relieve the Small Causes Court from the obligation of going into the complicated question of title. It is well settled that before returning a plaint u/s 23 of the PSCC Act, the Court should consider whether the suit before it really involves the question of title. Where the relief claimed by the plaintiff depends upon proof or disproof of a disputed question of title to immovable property of such a nature in which there are complicated questions involved which the Small Causes Court cannot finally determine the trial Court should return the plaint to be presented to a Court having jurisdiction to determine the title.

From what is staled above, it does not appear that question of title involved is such that it deprives the Small Causes Court of its jurisdiction to try the suit. At the first instance, the suit has already been tried on merits and has been dismissed on the ground that the petitioner has failed to establish that the respondent-defendant has attorned the tenancy in his favour. After remand, the trial Court has taken the registered settlement deed dated 16-5-1941 on record which, as noted above, has not been seriously challenged by the respondent-defendant. The case was remanded to the trial Court for fresh decision according to law with liberty to the petitioner-plaintiff to produce the aforementioned settlement deed.

The trial Court has not recorded its finding as to whether the complicated question of title is involved and, therefore, the plaint should be returned to be presented before the proper Court. True that it is the discretion of the trial Court to try the suit in which question of title is involved or to return the plaint; but the exercise of discretion should be judicial, and, therefore, the impugned order suffers from material irregularity, particularly when this Court had directed the trial Court to decide the case afresh in the light of the directions given in the order of this Court.

In the result, the revision petition is allowed. The impugned order whereby the plaint has been ordered to be returned to the petitioner-plaintiff, is set aside and the case is remanded to the trial Court with the direction to re-register the plaint on being presented before it by the petitioner-plaintiff on 21-6-1999 and after hearing both the parties should dispose of the suit on merits according to law. The parties to the revision petition are. directed through their learned Counsel to appear before the trial Court on 21-6-1999 for further proceedings. However, I leave the parties to bear their own costs of revision.