Smt. Aliman And Others vs Sri Salim And Another
2013 Latest Caselaw 7309 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 7
 
Case :- WRIT - A No. - 3609 of 2008
 
Petitioner :- Smt. Aliman And Others
 
Respondent :- Sri Salim And Another
 
Counsel for Petitioner :- P.C. Jain
 
Counsel for Respondent :- S.C.,S.O.P.Agarwal
 
Hon'ble Ran Vijai Singh,J.

Heard Sri P.C.Jain, learned counsel for the petitioners and Sri S.O.P.Agarwal, learned counsel for the respondents.

By means of this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 16.10.2007 passed by the Additional District Judge, Court No. 18, Agra in SCC Revision No. 13 o 2007 (Smt. Aliman and others vs. Salim and others) by which the learned Judge has allowed the revision and set aside the judgment and decree dated 27.1.2007 passed by Judge Small Causes Court, Agra in SCC Case No. 78 of 2001.

The facts giving rise to this case are that it appears the Original Suit No. 1200/2005 was filed by the present petitioners against the respondents seeking their eviction from the land in dispute mentioned in the prayer of the plaint. There the trial court has dismissed the suit holding it to be not cognizable by the civil court as on the land in dispute, a structure, which is in the user of the defendant, is also there, which falls in the ambit of building.

Aggrieved by this order, it appears, the respondents have filed Civil Appeal No. 263 of 1998 (Smt. Aliman Begum and others Vs. Salim @ Salimuddin and other). On 13.4.2001, the said appeal was disposed of with the consent of learned counsel for the parties with the direction to return the plaint for presentation before the learned Judge Small Causes Court with the further direction to the appellants (respondents) to pay Rs. 500/- cost to the present petitioners (respondents in the appeal). Thereafter, the same plaint was presented before the Judge Small Causes Court where new number was given being SCC Case No. 78 of 2001. After contest, the learned Judge Small Causes Court has decreed the suit vide judgment and decree dated 27.1.2007.

Aggrieved by this judgment, the respondents have filed SCC Revision No. 13 of 2007. Before the revisional court, the respondents have raised the question of jurisdiction saying that as after return of the plaint by the civil court, the plaint

has not been amended, therefore, in view of the assertion made in the plaint, the Judge Small Causes Court had no jurisdiction to proceed with the matter. The revisional court has accepted the version of the respondents and allowed the revision by setting aside the judgment and decree dated 27.1.2007 passed by the learned Judge Small Causes Court in SCC Case No.78 of 2001 declaring it to be without jurisdiction.

While assailing this order, Sri Jain, learned counsel for the petitioners submitted that the revisional court has erred in allowing the revision by setting aside the judgment and decree dated 27.1.2007 passed by the learned Judge Small Causes Court. In his submissions, once the parties have admitted that it is the Small Causes Court which has jurisdiction to proceed with the matter. The party concerned cannot give u-turn by saying that the Judge Small Causes Court has no jurisdiction. In support of his submissions, he has placed reliance upon the judgment of this Court in Kali Das Wadhwani and another Vs. Jagjiwan Das and another 1985 (2) ARC 533. Particular attention has been drawn towards para 19 of the judgment.

Refuting the submissions of Sri Jain, learned counsel for the petitioners, Sri Agarwal learned counsel for the respondents submitted that the question of jurisdiction goes to the root of the matter and it is settled that the jurisdiction can neither be conferred, nor assumed, nor presumed, nor acquired by acquiescence of the parties and any order passed without jurisdiction is nullity. Therefore the revisional court has rightly set aside the judgment and decree passed by the trial court holding it to be without jurisdiction.

For appreciating the controversy, it would be necessary to go through the earlier order passed in Suit No. 1200 of 1995 where the learned Judge has dismissed the suit with the following observations.

^^nks ewy fookn gS 1- D;k izfroknhx.k oknhx.k ds fdjk;snkj gS] 2- D;k fookfnr laifRr [kqyh Hkwfe ds :i esa fdjk;s ij nh xbZ vkSj vc Hkh [kqyh Hkwfe gSA

x x x x x x

f}rh; iz'u fuekZ.k ls lEcaf/kr gS D;ksafd orZeku esa u dsoy fVu 'kSM dk fuekZ.k gS ftlesa nks dejs ySfVªu] jlksbZ vkWxu gS] [kqyh Hkwfe fdjk;s ij nh x;h Fkh bldk dksbZ lk{; ugh gSA Lo;a oknh }kjk izLrqr lk{kh [kqys vkWxu fVu 'kSM dks nf'kZr djrs gS vkSj fjgk;'kh mn~ns'; dks ns[krs gq;s ;g fuekZ.k fcfYMax dh Js.kh esa vk;sxk tgkW ,DV 13] 1972 ykxw gksxkA Hkys gh

fuekZ.k edku ekfyd dh lgefr ls fd;k x;k gksA izfroknh lkfcr ugh dj ldk gSA fdlh fcfYMax ls tks LFkkbZ izd`fr dh gS ftlesa fVu'kSM lfEefyr gS] ls csn[ky fd;k tkus gsrq bl U;k;ky; dks {ks=kf/kdkj ugh gSA ;g {ks=kf/kdkj ya?kqokn U;k;k/kh'k dks gS tgkW ls oknh leqfpr vuqrks"k izkIr dj ldrk gSA ;fn mlds vkSj izfroknh la0 1 ds e/; vkil esa edku ekfyd vkSj fdjk;snkj dk laca/k LFkkfir gksrk gksA

x x x x x x

vr% fuekZ.k dks LFkkbZ izd`fr dk ekuk tk;sxk tks fcfYMax dh Js.kh esa vk;sxk ftlls csn[ky fd;s tkus dk vf/kdkj ¼{ks=kf/kdkj½ bl U;k;ky; dks u gksdj y?kqokn U;k;k/kh'k dks gksxkA ckn fcUnq la0 1 rnuqlkj oknhx.k ds fo:) fuLrkfjr fd;k tkrk gSA okn fcUnq la0 2 Hkh rnkuqlkj oknhx.k ds fo:) fuLrkfjr fd;k tkrk gS ,oa vi/kkfjr fd;k tkrk gS fd fookfnr Hkwfe [kqyh txg ugh gS cfYd mlesa fuekZ.k fLFkr gSA^^

Thereafter the plaintiffs have filed appeal and the appellate court on 13.4.2001 has passed an order for returning the plaint for presentation before the Judge Small Causes Court, after imposing a cost of Rs. 500/- on the present respondents, as the counsel for both the parties have agreed that the plaint may be returned for presentation before the Judge Small Causes Court.

Sri Jain has contended that once the plaint has been returned by the order of the appellate court with the consent of learned counsel for the parties, then it is not open for the respondents to withdraw from that admission and the revisional court has erred in allowing the revision by entertaining the issue of jurisdiction afresh. In Kalidas Wadhwani (supra) this Court has observed as under :-

19.The two necessary ingredients required are, firstly, that the suit should be by a lessor for eviction of a lessee and, secondly, that it must be a suit relating to a building. In a case where a dispute has been raised whether the property in respect of which the suit has been filed by the lessor for eviction of a lessee is in relation to a building or not, the jurisdiction of the Court would be dependent upon the determination of the question whether the property in dispute is a building. In the parties agree at a certain stage of the proceedings that the suit relates to a building then, in that event, they cannot be permitted to blow hot and cold in the same breadth and later urge that the suit does not relate to a building. In the instant case, initially, the revisionists urged that the suit was in relation to a building. The evidence was brought on the record to the same effect. The learned Counsel for the plaintiff opposite party finding that the suit would relate to a building, ultimately agreed with the revisionists and permitted the case to be transferred to a court of the Judge Small Causes. The revisionists are now estopped, in law, in my opinion from urging that the suit does not relate to a building and, as such, it is not cognizable by the Court of Judge Small Causes.

It has not been disputed by learned counsel for the parties that the jurisdiction of the court is decided not only by the prayer made in the plaint but the jurisdiction is being determined after entire reading of the plaint. The revisional court has observed that in the plaint, there is no mention about the structure/building. The finding recorded by the revisional court appears to be perverse for the simple reason that in the relief no. 1 of the plaint, following averments have been made.

That defendant no. 1 was the monthly tenant on behalf of Sri Abdul Wahab and Abdul Jabbar in open land detailed at the foot of this plaint lastly at Rs. 25/- per month as rent. The said defendant used to reside in the land by sheding straw sheds therein.

From the bare reading of the prayer it transpires that apart the land, the plaintiffs' case was that the defendant is using sheding straw sheds on the aforesaid land for the residential purposes, therefore the finding recorded by the revisional court is unsustainable.

From the entire reading of the plaint, it is apparent that on the land in dispute, there was also straw sheds and the present respondent was residing and taking note of that, the earlier court deciding the Suit No. 1200 of 1995 has held that on the land in dispute there is a building and therefore this Court has no jurisdiction to proceed with the matter and dismissed the suit. However, the appellate court with the consent of learned counsel for the parties, has returned the plaint for presentation before the learned Judge Small Causes Court. Therefore in view of the law laid down by this Court in Kalidas Wadhwani (supra), it was not open for the respondents to raise the question of jurisdiction before the revisional court.

In view of foregoing discussions, I am of the considered opinion that the judgment and order passed by the revisional court is unsustainable in the eye of law.

The writ petition succeeds and is allowed.The impugned order dated 16.10.2007 passed by the Additional District Judge, Court No. 18, Agra in SCC Revision No. 13 of 2007 (Smt. Aliman and others Vs. Salim and others) is hereby quashed. The matter is remitted back before the revisional court for deciding the revision on merit in accordance with law expeditiously as early as possible.

Order Date :- 5.12.2013

Pratima