Pooran Singh Aswal vs Surajbhan

Umesh Chandra Dhyani, J—By means of present civil revision, the plaintiff/revisionist seeks to set aside the impugned order dated 26.04.2011, passed by Judge, Small Cause Court/Addl. District Judge, Rishikesh in S.C.C. Suit No. 01 of 2003, whereby said Court has decided the preliminary issue against the plaintiff/revisionist and has dismissed the suit. Whereas Mr. Siddhartha Singh, learned counsel for the revisionist is present, none is present for the defendant/respondent despite sufficient service of notice. The same was held ''sufficient'' by this Court vide order dated 23.04.2013. On the last two occasions also, when the civil revision was listed, none appeared for the respondent and, therefore, hearing was adjourned in the interest of justice but, sadly, none has appeared for the respondent to contest the civil revision even today, so this Court proceeds to decide the civil revision on merits in the absence of the defendant/respondent.

Plaintiff/revisionist filed a SCC suit bearing No. 01 of 2003 in the court of Judge, Small Cause Court/Addl. District Judge, Rishikesh. Written statement was filed by the defendant/respondent. On the basis of pleadings of the parties, an issue was framed as to whether the plaintiff is not the owner of the disputed property and the court below has no jurisdiction to decide the matter?

Learned court below decided issue No. 1 holding that the said court has no jurisdiction to try the matter. Said issue was, therefore, decided against the plaintiff/revisionist and in favour of the defendant/respondent. The file was thus directed to be consigned to the record room.

The main grounds which have been taken by the revisionist in the present civil revision are being reproduced hereinbelow for convenience:

"(1) Because the preliminary issue regarding the ownership and landlord ship and the jurisdiction of SCC court was framed on 28.04.2003 and against on 12.11.2008 two issues were framed regarding the jurisdiction of the court and regarding the applicability of U.P. Act No. 13 of 1972 and further additional issues were framed on 26.03.2011 regarding the arrears of rent, water tax, house tax, mesne profit and relief claimed. Despite the complete evidence on the record, Judge, Small Cause Court by exercising the jurisdiction not vested in him by law and by exercising the jurisdiction illegally with material irregularity had dismissed the case of plaintiff by deciding the preliminary issue without recording any reasoning by a cryptic order impugned herein, which cannot be sustained.

(2) Because Judge, Small Cause Court had failed to appreciate the own admission of defendant/respondent herein regarding the payment of rent by the defendant to the plaintiff and has further failed to consider the probabilities and preponderance of probabilities.

(3) Because Judge, Small Cause Court did not consider the effect and import of injunction suit, O.S. No. 14 of 2002 filed by the defendant against the plaintiff herein, O.S. No. 14 of 2002, Suraj Bhan v. Puran Singh Aswal, for perpetual injunction in the court of Civil Judge (J.D.), Rishikesh.

(4) Because the Judge, Small Cause Court did not consider the findings recorded in judgment dated 31.08.2004, passed on O.S. No. 14 of 2002, Suraj Bhan v. Puran Singh Aswal, wherein it has specifically been held that the property was constructed by Puran Singh Aswal in the year 1998.

(5) Because Judge, Small Cause Court had failed to appreciate the trite law that even if question 4 of title is involved in SCC suit, then the jurisdiction of Judge, Small Cause Court is not ousted and the question of title can be decided incidentally."

It is the statement of learned counsel for the revisionist that the parties had already brought their evidence on record when the impugned order was passed. In other words, final hearing was complete when the order under challenge was passed. Issue No. 1 was framed to the following effect: "Whether plaintiff is not the owner of the disputed property and this Court has no jurisdiction to decide the case?"

Learned court below has observed in the impugned order dated 26.04.2011 that the plaintiff filed present SCC suit with the averment that he is the owner of the disputed property and defendant is his tenant. Defendant filed his written statement and pleaded that the plaintiff is not the owner of the disputed property. Instead, the owner of the disputed property was one Jagdish Chandra Aswal, the real brother of the plaintiff and, therefore, plaintiff has no jurisdiction to institute the suit and, consequently, SCC court has no jurisdiction to decide the matter. The issue relating to the ownership can be decided only by the civil court. It has been admitted by the court below in the impugned order that the parties had already led the evidence. Learned court below was of the opinion that Jagdish Chandra Aswal was the owner of the disputed property and, therefore, SCC court has no jurisdiction to decide the present controversy. The court below, therefore, held that since SCC court has no jurisdiction to decide the matter, therefore, the suit was dismissed. Learned counsel for the revisionist submitted that infact the plaintiff did not file written objections on the application No. 176-C filed on behalf of the defendant. It is not that the plaintiff had no objection to the application No. 176-C, although it is a different matter that he could not file the objections against the same.

When an issue was framed by learned court below as to whether the plaintiff is owner of the disputed property or not and whether SCC court has jurisdiction to decide such matter or not, it was incumbent upon the court below to have discussed the evidence, which was led by the parties before the said court. The court below wrote only one sentence that the plaintiff was not the owner of the disputed property and, therefore, the said court has no jurisdiction to decide the suit. The court below ought to have discussed the evidence of parties to come to a finding that the plaintiff was not the owner of the disputed property. It was not proper on the part of the court below to have written one sentence holding that the plaintiff was not the owner of the disputed property and, therefore, the said court has no jurisdiction to decide the matter. When it was a mix question of law and fact, therefore, it ought not to have decided as a preliminary issue, especially when the parties had already led the evidence on such issue and also on other issues.

Order XIV, Rule 2 of the Code of Civil Procedure is important in this respect, which is being gainfully reproduced hereinbelow for convenience:

"Court to pronounce judgment on all issues.--(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force,

and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

The order impugned, therefore, cannot sustain in view of the above discussion and in view of the above provision of law. The civil revision is, therefore, allowed. Impugned order dated 26.04.2011 is set aside. The matter is remitted back to the court below to decide the SCC suit on merits, to give a finding on issue No. 1 alongwith all other issues, as per law. In such a decision, the court below may come to a finding that SCC court has no jurisdiction to decide the controversy, which has arisen between the plaintiff and the defendant, but, for that, the said court has to discuss the evidence to arrive at such conclusion. Since the matter pertains to the year 2003, therefore, learned court below is requested to make an endeavour to decide such suit at the earliest possible, according to law.