N.K. Sarin vs Anjana Khanna & Others

Lok Pal Singh, J

1) Civil Revision under Section 25 of the Provincial Small Cause Courts Act, 1887, is directed against the order dated 19.03.2016, passed by Judge, Small Cause Courts / IV Addl. District Judge, Dehradun, in S.C.C. Suit No. 36 of 2012, N.K. Sarin Vs Smt. Anjana Khanna & others, whereby the application (paper no. 67C) filed by defendants / respondents no. 1 to 3 has been allowed and the plaint has been returned to the plaintiff / revisionist for being presented before the competent court.

2) Heard learned counsel for the parties and perused the entire record.

3) Brief facts of the case are that the plaintiff / revisionist instituted S.C.C. Suit no. 36 of 2012, N.K. Sarin vs Anjana Khanna and others, stating therein, that the defendant nos. 1 to 3 (respondent nos. 1 to 3 herein) were month to month tenants of the plaintiff (revisionist herein) in respect of one shop bearing no. 8/2, forming part of property bearing Municipal no. 11, Rai Bahadur Ugrasen Road, Astley Hall (also known as 3-A, Astley Hall, Dehradun) at a monthly rent of Rs.100/- plus taxes. The said shop was originally let out to one D.R. Khanna, who was running his business of opticians under the name and style of M/s Khanna Opticians. Upon the death of D.R. Khanna, defendant nos. 1 to 3 became tenants as his heirs and are in occupation in the said shop. The defendant nos. 1 to 3 have not paid the rent and taxes due w.e.f. 01.01.1988 and upto July 2008 a sum of Rs.24,700/- was due from them on account of arrears of rent, besides a sum of Rs.3,087/- as water tax Rs.741/- as sever tax and Rs. 308.75 as house tax. A total sum of Rs.28,837.25 was due towards the defendant nos. 1 to 3 on account of arrears of rent and taxes. The plaintiff issued a notice dated 16.07.2008 to the defendant nos. 1 to 3 asking them to pay the arrears of rent, taxes and mesne profits/damages and to vacate the suit property at the expiry of notice period of one month. Said notice was duly served upon them on 18.07.2008. It is alleged, that inspite of service of notice, the defendant nos. 1 to 3 failed to comply with the same.

4) It is averred that Smt. Sunita Chawla (sister of the plaintiff) and defendant no. 6 Satish Kumar Chawla (husband of late Smt. Sunita Chawla) on the basis of some arrangement which was entered into between the plaintiff, his sister late Smt. Sunita Chawla and her husband Satish Kumar Chawla on 06.06.1989, but the arrangement arrived between the plaintiff, his sister Smt. Sunita Chawla and Satish Kumar Chawla was cancelled and they are not claiming any rights over the suit property. It is averred in the plaint that Smt. Sunita Chawla expired in 1998 leaving behind her husband (defendant no. 6), her son Raman Chawla (defendant no. 4) and daughter Bhawna Chawla, as her heirs and legal representatives. As such, defendant nos. 4, 5 and 6 are proper parties to this suit and were accordingly impleaded defendants. No relief is being claimed against them. It is stated in the plaint that the tenancy of defendant nos. 1 to 3 stood terminated upon the expiry of one month from the date of receipt of notice dated 16.07.2008, which was served upon them on 18.07.2008. The defendants are also liable to pay pendente lite and future mesne profits for wrongful use and occupation of the said shop from the date of filing of the suit till the date of delivery of possession @ Rs.30,000/- per month, which is current letting value of the said shop.

5) Defendants / respondent nos. 1 to 3 filed their joint written statement, stating therein that they are tenant over the shop in question at the rate of Rs.100/- per month and have became tenants after the death of Sri D.R. Khanna as his heirs and are in occupation over the shop in question. They have denied the fact of non-payment of rent, water tax and house tax from 01.01.1988. It is also stated that the plaintiff has no right to terminate their tenancy. In the additional statement it has been stated that the plaintiff sent a letter dated 23.10.1989 to defendant nos. 1 to 3 informing that the new owner of the shop in question are Sri S.K. Chawla and Smt. Sunita Chawla, as the plaintiff along with his mother Vimla Devi have executed a sale deed in favour of S.K. Chawla and Smt. Sunita Chawla. The said sale deed is duly registered with the Sub Registrar, Dehradun. It is further stated that they tried to pay rent through money order and draft, but Sri S.K. Chawla and Smt. Sunita Chawla, declined to receive the same. The ownership of the plaintiff over the shop in question is still disputed, as such, the plaintiff has instituted the suit with mala fide intention, and has concealed material facts to mislead the court. It is contended that the suit is barred by limitation. Lastly, it is contended that the plaintiff has no cause of action, and as such, he is not entitled to any relief.

6) Neither respondent nos. 1 to 3 raised their own title nor respondent no. 6 Satish Kumar Chawla claimed any right over the suit property. The revisionist / plaintiff had disclosed all these averments in the plaint and the same were not denied by the defendants / respondent nos. 4, 5 and 6. The issue was not raised by the defendant that the plaintiff is not owner of the property or the defendant nos. 1 to 3 are owners of the property. But, surprisingly without taking any plea in regard to the title of the suit property and even disputing the landlordship of the plaintiff / revisionist, the respondent nos. 1 to 3 moved an application under Section 23 of the Provincial Small Cause Courts Act, 1887 with the following averments:

(i) The right of the plaintiff and the relief claimed by him depend upon the proof or disproof of his alleged title to immoveable property i.e. property in question and the Court of Judge Small Causes, Dehradun, cannot finally determine the controversy between the parties.

(ii) It is in the interest of justice that the plaint be returned to the plaintiff to present the same in a court having jurisdiction to determine the title.

7) The plaintiff filed its objection, stating therein, that the application has been filed with mala fide intention and oblique motive which is not supported by an affidavit and the same is just to delay the case, therefore, the application is liable to be dismissed.

8) Learned trial court by impugned order dated 19.03.2016 has recorded the finding that the relief sought by the plaintiff can be granted on proving its ownership. Since, in the present suit, the question of title is involved, therefore, this court has got no jurisdiction to hear and decide the suit. Further the trial court has recorded the finding that there was an arrangement between the plaintiff and respondent nos. 4 to 6 arrived on 06.06.1989 and subsequently the arrangement was cancelled by cancellation deed dated 07.09.2010 (paper no. 42C). An endorsement was also made that Satish Kumar Chawla and Surendra Chawla are not claiming any rights over the suit property. Learned trial court having considered the catena of judgments recorded a finding that when intricate question of title is involved, the Judge, S.C.C. can not decide the matter and the suit shall be returned to the plaintiff to institute the same before the competent court having jurisdiction and consequently allowed the application (paper no. 67C) and directed to return the plaint to the plaintiff as per rules to institute the same before the competent court having jurisdiction. Feeling aggrieved, this civil revision has been filed.

9) Having heard learned counsel for the parties it would be apt to extract the provisions contained in Section 23 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the P.S.C.C. Act) 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 or 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 proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

(2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of Section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Indian Limitation Act, 1877 be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction."

10) A perusal of the plaint averments and the defence taken by the defendants in their written statement would reveal that the plaintiff did not claim any ownership against the defendants. Rather, the defendant nos. 4 to 6 in whose favour the arrangement was arrived between the plaintiff, they have decided to waive their rights by the deed dated 07.09.2010 (paper no. 42C). Neither the right of the plaintiff nor the relief claimed by him is dependent upon the proof or disproof of a title to the immoveable property. No such issue is raised by the defendants that the plaintiff is not the owner or the defendants no. 3 to 6 are the owner and landlord of the property. Further, the suit for eviction against a tenant by the landlord can be instituted in the court of Judge, Small Causes Court.

11) The definition of 'tenant' is given in Section 3(a) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (U.P. Act no. 13 of 1972) which says that tenant in relation to a building, means a person by whom its rent is payable, and on the tenant's death or his heirs. The definition of 'landlord' is given in Section 3(j) of the U.P. Act no. 13 of 1972 which says that 'landlord', in relation to a building, means a person to whom its rent is or if the building, were let would be, payable, and includes, except in clause (g), the agent or attorney, of such person.

12) Admittedly, respondent nos. 1 to 3 succeeded the tenancy rights from their father, who was tenant on behalf of the plaintiff. The only plea raised by them is that some arrangement was arrived between the plaintiff and his sister Smt. Sunita Chawla on 06.06.1989, whereby the rights were assigned by the plaintiff in favour of his sister Smt. Sunita Chawla and the defendants started to pay the rent to Smt. Sunita Chawla. However, this arrangement dated 06.06.1989 was subsequently cancelled on 01.01.1996 (paper no. 42C) which is an admitted fact to the parties. The defendants have not taken a plea that the document (paper no. 42C) of cancelling the arrangement arrived between the plaintiff and Smt. Sunita Chawla dated 06.06.1989 has not been cancelled. Learned trial court having only considered the definition of Section 23 of the P.S.C.C. Act has directed that the suit be returned to the plaintiff to institute the same before a competent court having jurisdiction as the title of plaintiff is based on proof and disproof. To my mind, the provision of Section 23 of the P.S.C.C. Act would apply when the intricate question of title is involved, but the plea raised by the plaintiff and denied by the defendants that plaintiff is not the owner of the suit property and the defendants claims their own title. If the defendants did not claim their own title over the suit property and once they admitted the landlordship of the plaintiff they are estopped to deny the title of the property in view of the provisions contained in Section 116 of the Evidence Act.

13) Section 116 of the Evidence Act is excerpted hereunder:

"116. Estoppel of tenant; and of licensee of person in possession. -No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."

14) Since the defendants 1 to 3 have admitted this fact that plaintiff was owner of the suit property and he let out the property to the defendant nos. 1 to 3, therefore, the defendants cannot deny the title of the suit property.

15) Learned counsel for the defendants/respondents placed reliance on the judgment rendered by Hon'ble Apex Court in Budhu Mal Vs Mahabir Prasad and others, (1988) 4 SCC 194 in support of his contention. Paragraph nos. 3 and 9 and said judgment are excerpted hereunder:

"3. Subsequently suits were instituted by Mahabir Prasad against the appelnlats for recovery of arrears of rent etc. and their eviction from the premises in their tenancy on the ground that notwithstanding being informed of the deed of cancellation they had not paid rent to him and were in arrears. One of the pleas raised in defence by the appellants was that the deed dated 8th December, 1966 could not be unilaterally cancelled by Mahabir Prasad by the subsequent deed dated 3rd November, 1970 and that he rent claimed by Mahabir Prasad to be in arrears had already been paid by them to Smt. Sulochna Devi. In other words, title of Mahabir Prasad to realize rent from the appellants was disputed by them. Smt.Sulochna Devi was also arrayed as a defendant in these suits. She seems to have filed a written statement acknowledging receipt of rent claimed by Mahabir Prasad as arrears from the appellants.

It is true that S. 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. It is also true that 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 that 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 S. 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. On the facts of the instant cases we feel that these are such cases in which in order to do complete justice between the parties the plaints ought to have been returned for presentation to a court having jurisdiction to determine the title. In case the plea set up by the appellants that by the deed dated 8th December, 1966 the benefit arising out of immovable property which itself constituted immovable property was transferred and in pursuance of the information conveyed in this behalf by Mahabir Prasad to them the appellants started paying rent to Smt. Sulochna Devi and that the said deed could not be unilaterally cancelled is accepted, it is likely not only to affect the title of Mahabir Prasad to realize rent from the appellants but will also have the effect of snapping even the relationship of landlord and tenant, between Mahabir Prasad and the appellants which could not be revived by the subsequent unilateral cancellation by Mahabir Prasad of the said deed dated 8th December, 1966. In that event it may not be possible to treat the suit filed by Mahabir Prasad against the appellants to be suits between landlord and tenant simpliciter based on contract of tenancy in which an issue of title was incidentally raised. If the suits cannot be construed to be one between landlord and tenant they would not be cognizable by a court of small causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate court so that none of the parties was prejudiced."

16) Facts of the case of judgment (supra) are that Mahabir Prasad (landlord) instituted a SCC suit for recovery of arrears of rent and eviction against the appellants (tenants). The contention of the appellants was that the deed dated 08.12.1966, which was executed could not be unilaterally cancelled by Mahabir Prasad by the subsequent cancellation deed dated 03.11.1970 and that the rent claimed by Mahabir Prasad to be in arrears at already been paid by the appellant to Smt. Sulochna Devi in view of the deed dated 08.12.1966. The facts of the present case are entirely different. In the present case, Smt. Sunita Chawla and her husband have relinquished their so called rights by executing a document (paper no. 42C) and cancelled the arrangement arrived between them on 06.06.1989. Therefore, the ratio of the judgment (supra) is not applicable as in the judgment (supra) the question of title between Mahabir Prasad and Sulochna Devi was involved.

17) Admittedly, father of defendant nos. 1 to 3 was tenant on behalf of the plaintiff. On death of their father the defendant nos. 1 to 3 inherited the tenancy rights, but thereafter an arrangement was arrived between the plaintiff and her sister Smt. Sunita Chawla on 06.06.1989. As a consequence, defendant nos. 1 to 3 started to pay the rent as alleged by them to Smt. Sunita Chawla, but the fact remains that by cancellation deed (paper no. 42C), the arrangement between the plaintiff and Smt. Sunita Chawla was bilaterally cancelled, but the defendants / tenants were informed that they are in arrears of rent and have to pay the rent to the plaintiff, but despite the demand raised by the plaintiff on due rent the defendants did not pay the rent to the plaintiff, then the plaintiff was constrained to institute a suit against them.

18) A suit for claims for money due on bond or other contract, or for rent, or for personal property is cognizable in the courts of small causes. Section 23 of the Act stipulates that when the right of a plaintiff and the relief claimed by him in a court of small causes depend upon the proof or 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 proceedings return the plaint to be presented to a court having jurisdiction to determine the title. In the case in hand, the suit for recovery of rent and ejectment has been filed by the plaintiff / revisionist against the defendants / respondent nos. 1 to 3. The defendants did not raise any title dispute by filing their written statements, rather they contended that plaintiff in view of arrangement arrived between the plaintiff and defendant nos. 4 to 6 directed that the rent be paid to respondent nos. 4 to 6, but respondent nos. 4 to 6 did not claim any rent from the respondent nos. 1 to 3. Paper no. 42C dated 06.06.1989 was cancelled by bilateral document dated 07.09.2010. Thus, the arrangement dated 06.06.1989 arrived between the plaintiff and defendant nos. 4 to 6 is not enforced. Thus, the suit filed by the plaintiff / revisionist was cognizable before the Judge, Small Causes Court. The Judge, Small Causes Court did not consider the provisions contained in Section 116 of the Evidence Act, which binds the defendants to deny the title and landlordship of the plaintiff. The respondents / defendant nos. 1 to 3 specifically did not deny the ownership and landlordship of the plaintiff, however, they claim that respondent nos. 4 to 6 became the owners, as such, the suit be returned. To my mind, since the question of title is not involved in the suit, therefore, the trial court should not have returned the plaint by envoking the provisions contained in Section 23 of the Act. The order impugned is illegal.

19) In view of the above, the impugned order dated 19.03.2016 is liable to be quashed. The same is hereby quashed. The civil revision is allowed. Application filed by respondent nos. 1 to 3 is hereby rejected. The suit is restored to its original number. The matter is remanded back to the trial court to decide the suit expeditiously, preferably within six months from the receipt of record and certified copy of the order. Lower court record be returned back. The parties shall appear before the trial court on 16.09.2019.